Karnataka High Court
Mahammed Babu Vallibhai vs Kumar Balayya Dundayya Mathapati on 11 August, 2022
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WP No. 111225 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
WRIT PETITION NO. 111225 OF 2019 (GM-CPC)
BETWEEN:
MAHAMMED BABU VALLIBHAI
AGE.54 YEARS, OCC. AGRICULTURE
R/O KOCHARI, TAL. HUKKERI, DIST. BELAGAVI
...PETITIONER
(BY SRI. RAMESH I ZIRALI.,ADVOCATE)
AND:
1. KUMAR BALAYYA DUNDAYYA MATHAPATI
AGE.20 YEARS, OCC. AGRICULTURE
R/O BASTWAD, TAL. HUKKERI, DIST. BELAGAVI
SINCE LUNATIC REPRESENTED BY HER MOTHER
KASHAWWA W/O DUNDAYYA MATHAPATI
AGE.35 YEARS, OCC. HOUSEHOLD and AGRICULTU8RE
R/O BASTWAD, TAL. HUKKERI, DIST. BELAGAVI
2. KUMARI. SOUNDARYA D/O DUNDAYYA MATHAPATI
AGE.17 YEARS, OCC. EDUCATION
R/O BASTWAD, TAL. HUKKERI, DIST. BELAGAVI
REPRESENTED BY HER MINOR GUARDIAN MOTHER
RESPONDENT NO.3
3. SMT. KASHAWWA W/O DUNDAYYA MATHAPATI
AGE.35 YEARS, OCC.HOUSEHOLD and AGRICULTURE
R/O BASTWAD, TAL. HUKKERI, DIST. BELAGAVI
4. RACHAYYA KEMPAYYA MATHAPATI
AGE.57 YEARS, OCC. AGRICULTURE
R/O KOCHARI, TAL. HUKKERI, DIST. BELAGAVI
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WP No. 111225 of 2019
5. SMT. GANGAVVA W/O SHIVALINGAYYA PUJERI
AGE.57 YEARS, OCC. HOUSEHOLD and AGRICULTURE
R/O BASTAWAD, TAL. HUKKERI, DIST. BELAGAVI
6. SMT. RACHAVVA W/O KEMPAYYA MATHAPATI
AGE.87 YEARS, OCC. HOUSEHOLD
R/O KOCHARI, TAL. HUKKERI, DIST. BELAGAVI
...RESPONDENTS
(BY SRI. ANAND ASHTEKAR, ADV. FOR R1, R3 & R5 (R2 MINOR
REP.BY R3,
R4 & R6 SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTOIN OF INDIA PRAYING TO ISSUE WRIT OF
CERTIORARI AND QUASH THE ORDER DATED 12.06.2019 PASSED
ON I.A.NO.XIV IN O.S.NO.225/2012 ON THE FILE OF THE ADDL.
CIVIL JUDGE AND JMFC, SANKESHWAR AS PER ANNEXURE-F.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
'B' GROUP THIS DAY THE COURT MADE THE FOLLOWING.
ORDER
The petitioner filed this writ petition seeking to quash the impugned order dated 12.06.2019 passed on I.A.No.XIV in O.S.No.225/2012 on the file of the Additional Civil Judge and JMFC, Sankeshwar.
2. Brief facts leading to the filing of this writ petition are as under:
Respondent Nos.1 to 3 filed a suit for partition and separate possession in O.S.No.225/2012 against the petitioner and respondent Nos.4 to 6. The petitioner filed -3- WP No. 111225 of 2019 written statement denying the averments made in the plaint. The petitioner has taken a specific defence in the written statement that suit is bad for non-joinder of all the properties and the same is barred by limitation. The trial court framed issues. The petitioner filed an application in I.A.No.XIV to frame additional issue with regard to limitation and suit is not maintainable for partial partition as respondent Nos.1 to 3 have not included all the joint family properties. The said application was opposed by respondent Nos.1 to 3 by filing objections. The trial court after hearing the parties rejected the said application vide order dated 12.06.2019. Hence, this writ petition.
3. Heard the learned counsel for the petitioner and learned counsel for the respondents.
4. Learned counsel for the petitioner submits that petitioner has taken a specific defence in the written statement that suit is barred by limitation and also taken a specific defence that respondent Nos.1 to 3 have not included other joint family properties. He submits that the -4- WP No. 111225 of 2019 suit for partial partition is not maintainable. He submits that the trial court has not framed issue on the point of limitation and maintainability of the suit for partial partition. He submits that the trial court rejected the application solely on the ground that plaintiff No.1 was born on 27.09.1999 and plaintiff No.2 was born on 12.12.2002. He submits that trial court has recorded finding on the merits of the case rather than recording finding on the application. He submits that the impugned order passed by the trial court is perverse and arbitrary. Hence, on these grounds he prays to allow the writ petition.
5. Per contra, learned counsel for the respondents supports the impugned order. He submits that the impugned order passed by the trial court is just and proper and does not call for any interference by this court. Hence, he prays to dismiss the writ petition.
6. Heard, perused the records and considered the submission of the learned counsel for the parties. -5- WP No. 111225 of 2019
7. It is not in dispute that respondent Nos.1 to 3 filed the suit for partition and separate possession. The petitioner filed written statement taking specific defence that the suit filed by respondent Nos.1 to 3 is barred by limitation. Further, the petitioner has also taken a specific defence that respondent Nos.1 to 3 have not included other joint family properties and hence, the suit for partial partition is not maintainable. The trial court has recorded finding on the merits of the case rather than recording finding on the application. Order XIV Rule 1 of CPC reads as under:
"1. Framing of issues. -
(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party denied by the other shall form the subject of distinct issue.
(4) Issues are of two kinds :
(a) issues of fact,
(b) issues of law.
(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and [after examination under rule 2 of Order X and after hearing the -6- WP No. 111225 of 2019 parties or their pleaders], ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.
(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence."
8. The scheme of Order 14 of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by the other should form the subject of a distinct issue. An obligation is cast on the Court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the Court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation case on the Court. It is for the Presiding Judge to exert himself -7- WP No. 111225 of 2019 so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the Court may at once pronounce the judgment. If the parties are at issue on some questions of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of fact. The evidence shall be confined to issues and the pleadings. No evidence on controversies not covered by issues and the pleadings, shall normally be admitted, for each part leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what dispute is. The judgment, then proceeding issue-wise -8- WP No. 111225 of 2019 would be able to tell precisely how the dispute was decided.
9. In the present case, the petitioner raised an issue in regard to limitation as well as maintainability of the suit. The trial court ought to have framed an issue in regard to limitation as well as maintainability of the suit. The trial court committed an error in rejecting the application filed by the petitioner. In view of the above discussion, I proceed to pass the following:
ORDER The writ petition is allowed.
The impugned order dated 12.06.2019 passed on I.A.No.XIV in O.S.No.225/2012 on the file of the Additional Civil Judge and JMFC, Sankeshwar is set aside.
I.A.No.XIV filed by the petitioner is allowed. The trial Court is directed to frame additional issues.
Sd/-
JUDGE MBS