Karnataka High Court
Mr Vikram Ravi Menezes vs Mr Victor Goveas on 18 January, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
WRIT PETITION No.2710/2013 (GM-CPC)
BETWEEN:
Mr.Vikram Ravi Menezes,
S/o.Pascal Denis Menezes,
Aged about 33 years,
At present R/at Goveas Compound,
Bajpe Post & Village,
Mangalore - 571 501 ...Petitioner
(By Sri:Sachin.B.Adv.,)
AND:
Mr.Victor Goveas,
S/o.Arthur Thomas Goveas,
Aged about 41 years,
At present R/at "Aranha Villa",
Kilpadi Village, Gerukatte,
Karnad, Mulky,
Mangalore - 571 501. ...Respondent
(By Sri.Cyril Prasad Pais, Adv., for C/R)
******
This writ petition is filed under Articles 226 and 227 of
the Constitution of India praying to quash the impugned
order on IA.No.IV dt.16.10.12 in OS.No.14/09 on the file of
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the court of Addl. Civil Judge, Mangalore, D.K, to the extent of
disallowing the application filed by the petitioner U/O 14 Rule
5 of the CPC., 1908, vide Ann-A and etc.,
This writ petition is coming on for preliminary hearing,
this day, the Court made the following:-
ORDER
Heard the learned counsel for the petitioner and also the learned counsel for the respondent.
2. In this writ petition under articles 226 and 227 of Constitution of India, the petitioner has called in question, the order dated 16.10.2012, passed by the trial Court in O.S.No.14/2009 on IA.No.4.
3. By the impugned order, the trial Court has partly allowed IA.No.4 and has framed proposed additional issue No.2 as issue No.5. Proposed additional issue No.1 has been rejected. Therefore, this writ petition.
4. The respondent has filed suit in O.S.No.14/2009 for declaration that the sale deed dated 29.01.2005 allegedly executed by the father of the respondent in favour of the 3 petitioner is null and void and not binding on the respondent and for permanent injunction. At the stage of evidence, the petitioner has filed IA.No.4 for framing additional issues. The trial Court has partly allowed IA.No.4. Proposed additional issue No.1 has been rejected.
5. The learned counsel for the petitioner contended that, the impugned order cannot be sustained in law. He also submitted that proposed additional issue No.1 was necessary. Further he submitted that the petitioner has denied the will dated 23.02.1968 and therefore, the proposed additional issue No.1 was necessary and therefore, the impugned order cannot be sustained in law.
6. As against this, the learned counsel for the respondent submitted that the impugned order does not call for interference. He also submitted that the petitioner has admitted the will and the will dated 23.02.1968 has been probated and therefore, the impugned order does not call for interference.
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7. I have carefully considered the submissions made by the learned counsel for the parties.
8. The point that arises for my consideration is:
Whether the impugned order in respect of proposed additional issue No.1 calls for interference.?
9. It is relevant to note, the suit in O.S.No.14/2009 has been filed by the respondent for declaration that the sale deed dated 29.01.2005 allegedly executed by the father of the respondent in favour of the petitioner is null and void and for permanent injunction. The petitioner has contended that the testator Rev.Fr.Gratian Goveas having learnt about his conditional bequest the previous will in favour of Arthur Goveas by will dated 23.08.1968 by removing condition of non-alienation. The will dated 23.02.1968 has been admitted and it has been probated in case No.5/1971 before the Allahabad High Court. In view of the admission issue No.3 has been framed. The proposed additional issue No.1 is unnecessary. Therefore, the impugned order does not call for 5 interference. There is no merit in this writ petition and therefore, it is liable to be dismissed.
Accordingly, the writ petition is dismissed.
Sd/-
JUDGE HJ*