N Gangamma vs Vibha Hareesh on 27 June, 2019

[Cites 6, Cited by 8]

Karnataka High Court

N Gangamma vs Vibha Hareesh on 27 June, 2019

Bench: Krishna S.Dixit

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       IN THE HIGH COURT OF KARNATAKA, BENGALURU


           DATED THIS THE 27TH DAY OF JUNE, 2019

                            BEFORE

         THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

         WRIT PETITION NO.23333 OF 2019 (GM-CPC)

BETWEEN:

1.   N GANGAMMA
     WIFE OF LATE R.LINGEGOWDA,
     AGED 76 YEARS

2.   LATHA BHAT
     WIFE OF SANJIV BHAT,
     AGED 46 YEARS

     PETITIONERS PREVIOUSLY
     R/AT NO.6, 5TH CROSS,
     CHENNAKESHAVA NILAYA,
     BCC LAYOUT, CHANDRA LAYOUT,
     1ST STAGE, 2ND PHASE,
     BENGALURU-560 040.

     AND NOW R/AT NO.1434,
     1ST STAGE, 2ND PHASE,
     CHANDRA LAYOUT,
     BENGALURU-560 040.
                                           ... PETITIONERS

(BY SRI. IAN LEWIS, ADVOCATE)
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AND:

1.   VIBHA HAREESH
     DAUGHTER OF L.HAREESH,
     NOW AGED 16 YEARS
     A MINOR REPRESENTED BY HER
     MOTHER AND NEXT FRIEND
     VIMALA HAREESH
     NO.A/2197, 3RD CROSS,
     KUVEMPU NAGAR,
     CHENNAPATNA-571501.

2.   L.HAREESH
     SON OF LATE R.LINGEGOWDA,
     AGED 53 YEARS
     NO.102, 5TH A CROSS,
     4TH MAIN, VIDYAGIRI LAYOUT,
     NAGARABHAVI,
     BENGALURU-560 072.
                                        ...RESPONDENTS


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH OR
SETTING ASIDE THE IMPUGNED ORDER DATED 12.4.2019 IN
O.S.NO.27269/2011 PASSED BY THE LVII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE MAYO HALL, BANGALORE ON THE
INTERLOCUTORY APPLICATION FILED UNDER ORDER XIV RULE
5 READ WITH SECTION 151 OF THE CODE OF CIVIL
PROCEDURE, 1908 UNDER THE ORIGINAL OF IMPUGNED
ORDER ANNEXURE-A.

     THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:-
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                          ORDER

The short grievance of the petitioners, who happen to be the defendants in a suit in O.S.No.27269/2011 inter alia for a decree of partition is against the order dated 12.04.2019 made by the learned 52nd Addl. City Civil Judge, Bengaluru, a copy whereof is at Annexure-A, whereby the respondent-plaintiffs' application filed under Order XIV Rule 5 r/w Sec.151 of CPC 1908 has been substantially allowed.

2. The learned counsel for the petitioners vehemently contends that the Court below has not only framed a wrong issue but has placed the burden of proof wrongly on the shoulders of the petitioners; this being an error of great magnitude apparent on the face of the impugned order, the same needs to be invalidated. In support of his contention he banks upon P.S. SHIVAKUMAR vs. P.H. SUBBARAYAPPA & OTHERS, 2018 (3) KCCR 2044, A. SHANMUGAM vs. ARIYA KSHATRIAY RAJAKULA VAMSATHU MADALAYA NANDHAVANA PARIPALANAI 4 4 SANGAM, REPRESENTED BY ITS PRESIDENT, AIR 2012 SC 2010 and SMT. SUBBAMMA & OTHERS vs. SRI KARIYAPPA & OTHERS, 2017 (4) KCCR 313.

3. I have heard the learned counsel for the petitioners and perused the petition papers. I have also adverted to the decisions cited at the Bar.

4. The grievance of a party to the suit as to the framing, non-framing, recasting or deletion of issues, can be the subject matter of consideration by the Appellate Court, if and when such a litigant suffers an adverse judgment & decree at the hands of the trial Court, as provided under section 105 read with Order XLIII Rule 1A of CPC, 1908. Ordinarily, such orders are not scrutinized by the writ court exercising limited supervisory jurisdiction under Article 227 of the Constitution of India, of course subject to all just exceptions into which the case of the petitioner does not fit. This is the consistent view of this Court in more or less similar matters. 5 5

5. The reliance placed by the learned counsel for the petitioners on the decisions supra, it is true, can be cited to show the general principles of framing of the issues and about the placement of the burden of proof; but it is beside the point since the examination of the orders is not being undertaken for the reasons mentioned above. Petitioners may have an arguable case for seeking deletion of the issue in question, per se, is not a sufficient ground for granting indulgence in writ jurisdiction especially when a remedy avails to him, of course later, if and when they suffer an adverse decree.

In the above circumstances, this Writ Petition is disposed off without granting indulgence in the matter, with observations made herein above. All contentions are kept open.

No costs.

Sd/-

JUDGE SMJ

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