Karnataka High Court
Sri Amit Roy vs Sri Jyothendrasinhji Vikramsinhji on 18 June, 2019
Author: Krishna S.Dixit
Bench: Krishna S. Dixit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR.JUSTICE KRISHNA S. DIXIT
WRIT PETITION NO.43994/2018 (GM-CPC)
BETWEEN
Sri. Amit Roy
S/o. Late Ashit Roy
Aged about 49 years
R/at No.CTS-114,
Jayamahal Road, Bengaluru - 560 046.
... Petitioner
(BY Sri. Pradeep Singh, Advocate)
AND
Sri. Jyothendrasinhji Vikramsinhji,
S/o. Late Vikramsinhji
Aged about 76 years
R/at Huzur Bangla
Gondal Taluk, Gujaraj - 360 311.
... Respondent
(BY Sri. Gowrishankar C., Advocate)
This writ petition is filed under Article 227 of
Constitution of India praying to call for records and set aside
the order dated 02.08.2018 and allow the I.A.No.7 filed by the
petitioner under order 14 Rule 5 R/w Section 151 of C.P.C. in
O.S.No.38 of 2015 on the file of XXXI Addl. City Civil Judge
(CCH-14) at Bengaluru, vide Annexure - A and consequently
direct the Hon'ble Trial Court to frame the issue of "whether
the plaintiff proves his title as owner of the suit schedule
properties?".
This writ petition coming on for Preliminary Hearing this
day, this day, the Court made the following:
-2-
ORDER
The petitioner being the defendant in O.S.No.38/2015 is invoking the writ jurisdiction of this Court for assailing the order dated 2.8.2018 whereby his application in I.A.No.7 filed under Order XIV Rule 5 read with Section 151 of CPC, 1908, for framing of additional issues has been rejected by the learned 31st Additional City Civil Judge, Bengaluru. The contesting respondent has entered caveat through the counsel and opposed the writ petition.
2. The learned counsel for the petitioner submits that in the fact matrix of the suit, the issues that have been framed by the trial Court would not be sufficient for a final and complete adjudication of the lis in the suit; in more or less similar fact matrix, the Apex Court and this Court have held that the issues on the lines of ones proposed to the Court below ought to have been framed; non framing of proposed issues would cause material prejudice to the petitioner. So arguing, he seeks allowing of the writ petition. In support of his contention, he banks upon the decision of the Apex Court in the case of NAGARA PALIKA .VS. JIND JAGATSINGH, 1995(3) SCC 426; JHARKAND STATE -3- HOUSING BOARD VS. DIDAR SINGH, 2018 SCC ONLINE SC 2170 & VENKATASWAMY .VS. NARAYANA. A, AIR 2002 KAR 326.
3. Learned counsel for the Caveator respondent per contra submits that the proposed issues are not necessary for adjudication of the suit; the issues already framed by the Court vide order dated 12.1.2017 look after all the contentions in the case; ordinarily, it is for the trial Court to decide in its wisdom as to what issue should be framed and whether the issues proposed by the parties are relevant; if at all, non framing of the issues causes prejudice to the case of the petitioner, he can lay a challenge to the decree on that ground, if at all, he suffers one. So contending, he seeks dismissal of the writ petition.
4. I have heard the learned counsel for the petitioner and the learned counsel for the respondent. I have also perused the petition papers.
5. Arguably, the decisions cited on behalf of the petitioner lay down the principles as to framing of issues in a suit proceeding, is true. The Court below by a considered -4- order running into 12 pages having favoured petitioner's application in I.A.No.7 partly as to framing of the additional issue relating to authority of the PA holder to file the suit, has refused to frame the additional issue as to the validity of revenue documents concerning the subject property. The Court below has adverted to the principles relating to framing of issue.
6. Secondly, if at all the non framing of the additional issues results into petitioner suffering a decree, it is always open to him to urge the same as a ground in the appeal laying challenge to the decree as provided under Section 105 read with Order XLIII Rule 1A of CPC, 1908. This apart it is also open to the petitioner to make similar application again at appropriate stage of the suit, if and when the same becomes necessary. Thus, there is no immediate justification for invoking the jurisdiction of this Court.
In the above circumstances, this writ petition is disposed off with the observations made hereinabove.
Sd/-
JUDGE KTY