Karnataka High Court
Sri M C K Prasad vs Sri V. Gokul Das Pai on 21 September, 2012
Author: Ravi Malimath
Bench: Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ON THE 21ST DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
WRIT PETITION NOS.9086-9088 OF 2011(GM-CPC)
W.P.No.9086/2011:
BETWEEN :
SRI M C K PRASAD
S/O LATE M SRIKANTAIAH
AGED ABOUT 45 YEARS
R/AT NO. 205, V-MAIN
"ASHIRWAD", BANASHANKARI III STAGE
III PHASE, IV BLOCK
BANGALORE - 560 085. ...PETITIONER
( By Sri. K M PRAKASH, ADVOCATE)
AND :
1 SRI V. GOKUL DAS PAI
S/O V KRISHNA PAI
AGED ABOUT 43 YEARS
R/AT NO. 245, KOUNDINYA, II MAIN
5TH BLOCK, BSK III STAGE
BANGALORE - 560 085.
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2 SMT. GIRIJA SURYANARAYANA
W/O LATE H A SURYANARAYANA
MAJOR
R/AT NO. 469, MATHRU NILAYA
III CROSS, VII MAIN, II BLOCK
BSK III STAGE, III PHASE
BANGALORE - 560 085. ...RESPONDENTS
(BY SRI M R VIJAYRAGHAVAN, ADVOCATE FOR R1
R2-SERVED)
W.P.No.9087/2011:
BETWEEN:
SRI M.C.K.PRASAD
S/O LATE M.SRIKANTAIAH
AGED ABOUT 45 YEARS
RESIDING AT NO.205,
V-MAIN, "ASHIRWAD",
BANASHANKARI III STAGE,
III PHASE, IV BLOCK,
BANGALORE - 560 085. ...PETITIONER
(By Sri. K M PRAKASH, ADVOCATE)
AND:
SMT.GIRIJA SURYANARAYANA
W/O LATE H.A.SURYANARAYANA
MAJOR, RESIDING AT NO.469,
MATHRU NILAYA, III CROSS,
VII MAIN, II BLOCK, BSK III STAGE,
III PHASE, BANGALORE - 560 085. ...RESPONDENT
(BY SRI M R VIJAYRAGHAVAN, ADVOCATE)
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W.P.NO.9088/2011:
BETWEEN:
SRI M.C.K.PRASAD
S/O LATE M.SRIKANTAIAH
AGED ABOUT 45 YEARS
RESIDING AT NO.205,
V-MAIN, "ASHIRWAD",
BANASHANKARI III STAGE,
III PHASE, IV BLOCK,
BANGALORE - 560 085. ...PETITIONER
(By Sri. K M PRAKASH, ADVOCATE)
AND:
SRI V.GOKUL DAS PAI,
S/O V KRISHNA PAI
AGED ABOUT 43 YEARS
RESIDING AT NO.245,
KOUNDINYA, II MAIN,
5TH BLOCK,BSK III STAGE,
BANGALORE - 560 085. ...RESPONDENT
(BY SRI M R VIJAYRAGHAVAN, ADVOCATE)
*******
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO SET ASIDE THE ORDER DATED 22.01.2011
PASSED BY THE CITY CIVIL COURT, BANGALORE ON
I.A.NO.5 IN O.S.1540/2008 CLUBBED WITH
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O.S.9215/2005 AND OS.NO.3057/2007 AS PER
ANNEXURE-A.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
The respondent filed a suit for declaration, possession and for mesne profits etc. During the pendency of the suit the defendants filed an application under Section 115 of CPC seeking framing of additional issues. The trial Court by the impugned order rejected the same. Hence, the present Petition.
2. Two other suits filed by the first defendant in the present suit were for Judgment and decree against the plaintiff herein. Independent issues have been framed in all the three suits. The first issue sought to be added is as follows:-
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" 1) Whether the plaintiff in O.S.No.9215/2005 proves that the suit schedule property was registered, in trust, in the name of Sri H.A.Suryanarayana's wife Smt.Girija Suryanarayana, the 2nd defendant herein, who was made the trustee within the meaning of Section 2(a) of the Benami Transaction(Prohibition)Act, 1988?"
On consideration of the same the trial Court rejected the said plea. It was of the view that since the other suit is for permanent injunction the first issue in that suit would not arise and the same issue cannot be considered in the present suit. Hence he rejected the prayer so far as the additional issue is concerned. On considering the same I do not find any error committed by the trial Court. On the other hand, a reading of the Issue would show that what is sought as an additional issue is as to whether the plaintiff in that suit proves that the suit schedule property was registered. Necessarily such an issue cannot be framed in this suit. Hence, there is no issue. The first additional 6 issue sought for is the very second additional issue as to whether the alleged sale deed is hit by the Doctrine of lis pendence? While considering the second issue the trial Court held that the issue regarding the Doctrine of lis pendence cannot be framed in the absence of any pleading in that regard in O.S.No.1540/2008. I have perused the written statement of the defendants. He has specifically pleaded at para-9 that the sale is hit by Doctrine of lis pendence. As such the plaintiff derives no title or interest. Therefore the finding of the trial Court that there is absence of pleading is erroneous. It is not based on facts. It is contrary to para-9 of the written statement. Even otherwise on merits additional Issue no.2 requires to be considered. Hence, additional issue No.2 requires to be allowed.
3. The 3rd additional issue sought for is as to whether the plaintiff proves that the first defendant is a tenant of the suit schedule property on a monthly rent? 7 The learned counsel for the respondent pleads that it is not the subject matter of the suit at all. However on examining the plaint in O.S.No.1540/2008, the second prayer would indicate that what has been sought for is to direct the first defendant namely, the petitioner herein to pay the plaintiff mesne profits, damages for use and occupation of the suit schedule property. Hence, framing of this issue is just and necessary for the final adjudication of the suit. The trial Court fell in error in rejecting the application so far as third question is concerned.
For the aforesaid reasons, the order dated 22-1-2011 passed by the Additional City Civil & Sessions Judge, CCH No.44, Bangalore, is modified. The additional Issue No.1 is rejected. So far as the additional Issue Nos. 2 & 3 are concerned, the same are allowed. Both counsels submit that the suit is of the year 2005 and they pray that the suit may be disposed off at the earliest point of time. They further submit that they would co-operate in the 8 disposal and will not take any adjournment under any circumstances. The undertaking is noted. The trial Court shall dispose off the suit by the end of June, 2013.
Sd/-
JUDGE Rsk/-