Karnataka High Court
Dr N S Bapat S/O Lt Shri Subbarao Bapat vs Prashanth Bapat S/O Krishnarao Bapat on 17 August, 2012
Author: N.Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
CIVIL REVISION PETITION No.310/2012
BETWEEN:
1. Shri Dr.N.S.Bapat
S/o late Shri Subbarao Bapat
Aged about 60 Years
R/at "Krupavana", F-131,
3rd Cross, Gopal Gowda Extension
Shimoga City - 577401.
2. Shri C.S.Bapat
S/o late Shri Subbaro Bapat
Aged about 57 Years, R/at Shindli
Post : Harishi, Sorab Taluk
Shimoga District - 577429.
3. Shri M.S.Bapat
S/o late Shri Subbaro Bapat
Aged about 55 Years, R/at Shindli
Post : Harishi, Sorab Taluk
Shimoga District - 577429.
4. Shri Umesh S.Bapat
S/o late Shri Subbarao Bapat
Aged about 50 Years
R/at M/N 1/79, II Phase
K.H.B.Colony
Gopal Gowda Extension
Shimoga City - 577401. ... Petitioners
(By Sri Sampat Bapat, Advocate)
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AND:
1. Shri Prashanth Bapat
S/o Krishnarao Bapat
Aged about 35 Years.
2. Smt.Prathima
W/o A.S.Ramadass
Aged about 45 Years.
3. Smt.Suma, W/o Shivaram Bapat
Aged about 38 Years.
4. Smt.Premalatha
W/o Govinda Kale
Aged about 50 Years
All are R/at Main Road
Soraba Town, Shimoga District - 577434.
5. Shri Suresh G.Bapat
S/o late Shri Ganesh Rao Bapat
Aged about 40 Years
C/o Siddaramu, 2nd Cross
Marigowda Layout, Bannur Road
Mandya - 571401.
6. Shri Ramesh G.Bapat
S/o late Shri Ganesh Rao Bapat
Aged about 59 Years
R/at Ganeshappa Building
No.6, 1st Main Road
Mallesha Palya, Bangalore - 560 003.
7. Shri Krishna Rao Bapat
S/o late Bhujanga Rao Bapat
Aged about 75 Years
R/at Soraba Town
Shimoga District - 577434. ... Respondents
(By Sri S.V.Prakash, Advocate for R1; R2, R4 to R7 - are
served; R3 - service held sufficient)
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This petition is filed under Section 115 CPC, praying to
set aside the order dated 01.09.2009, on IA.No.4 and
preliminary Issues 9 and 10 in OS.No.307/2007, on the file
of Civil Judge (Sr. Dn.), Soraba and etc.
This petition coming on for admission this day, the
Court made the following:
ORDER
When the case is set down for evidence, the learned counsel for defendants made an application under Order VII Rule 11 CPC, and submitted that the application may be considered along with Issues No.9 and 10, which are treated as preliminary issues in the note appended to issues.
Issues No.9 and 10 read thus:
9. Whether the suit filed by the plaintiffs is barred by law of limitation?
10. Whether the defendants prove that there is no cause of action for filing the present suit?
Under Order XIV Rule 2 CPC, (1) that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. 4 (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. 2. In my considered opinion, Issues No.9 and 10 framed by the trial court do not fall within the purview of Order XIV Rule 2 CPC. On the other hand, issues have arisen out of mixed questions of fact and law. The case is set down for cross-examination of plaintiffs.
3. The learned counsel for defendants relying on the judgment of Supreme Court reported in (1998) 2 SCC 70 (in the case of ITC Limited -vs- Debts Recovery Appellate Tribunal and Others) would submit that an application 5 under order VII rule 11 can be decided even after issues are framed.
4. In the case on hand, the learned counsel for defendants after filing an application under Order VII Rule 11 CPC, has submitted that the application may be considered along with Issues No.9 and 10, which in terms of order made by the trial court are to be treated as preliminary issues. Therefore, the learned counsel for defendants cannot be permitted to contend that this application should have been decided at the first instance.
5. Therefore, I do not find any reasons to interfere with the impugned order. The petition is accordingly dismissed.
Sd/-
JUDGE Np/-