Karnataka High Court
Famila Fishnets R/By vs M/S Baliga Exports Pvt Ltd on 6 August, 2010
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH comu' OF KARNATAKA. BANGALORE
DATED Tms Tm: em DAY or AUGUST 20
BEFORE
THE I-ION'BLE MR. JUsT1c3TTA.RAv'iN;B1'
@T PETITION No.2577TGToT?%.A2éo9{GM-cf9&: ,_
WRIT PETITION No.259s3 014*" 2009 (Git:-'GPGJ
BETWEEN : h ' A' :
FAMILA FISHNETS REF»RESEN'rEfQ. BY
ITS MANAGING D.IREC'I'O_R., " ' '
JOHNSIILMOSEZS ' *
S/O
R/O 235/_1;B, ASARIPGALLAM ROAD.
,NASAMON":T;:A.NAGAR, *
a_AGASDI£;..ASWAI?A'TALUK,
'-KAVYAK13 D:sTRiCT.
= '- p ...PETITIONER
N TV (By é'::._ B;s'..'-- pfaséa, Adv. ,}
" T. 'MG/s."}3AVL.1GA EXPORTS PVT. LTD,
:vLA_;cH1,NERY DIVISION,
OLD--'POST OFFICE ROAD,
'POST BOX NO.20.
~ VUDUPI-1
BY ITS MANAGING PARTNER.
...RESPONDENT
[By Sri. S.R. Ravi Prakash, Adv.,} These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the Order dated 20.07.2009 passed by the Learned Civiii Judge"w[.Sr.._D-n.) at Udupi in OS No.42/2005 on IAJII and IV Vid~ejAnne;:<--G and to direct the Learned Civil Judge (S1'.1:_)_1'I=.) consider the IA.iII before considering the any_ot.he'rt_11s-sue'in OS No.42/2005 the IA No.IiI vide A_n.ne2_<--C. " " . These petitions coming on'~,forj_'pre1irninary in 'B' group this day, the Court mi-a.de the foi.I,;ow'ing: " * o R it This Writ petition ._'_thve~--..p1aintiffvv directed against the order by the Civil Judge (sr.oii.)'.' in' whereunder it is orderezid be taken up for of hearing of issue No.5 and been disposed of.
V' are as under:
instituted a suit in Nagarcoil Court on ffgagainst defendant seeking recovery of ainount.of":Rs.2,00,000/- with 6% future interest from V 23L.Q7lVk£003l It is also not in dispute that said suit came transferred to the Court of the Additional Civil W Judge (Sr.I)n.), Udupi and was renumbered as O.S.No.42/2005. Subsequent to fiiing of the statement by the defendant issues have and one of the issue is oftheuu suit which reads as under: V V V i 2 V 'V "5. Whether defendant--v_nfoues.vti1cit maintainable it contreinert'-€.$ Sec}; of the Indian Partfzerf;hi1§2_ Aaigtgi
3. Therefiter heen filed by the plaintiff seeking amendment of.
the to be numbered as I.A.Nor3 4' {$1 ' defendant also filed an appjiioationxurnider' Sevctiosn 151 of Code of Civil Procedure toV"tdis1E"riiss' the not majntainable on the ground a unregistered partnership firm. To the said appiroaeon the parties have filed their objections
-- after hearing the learned Advocates, trial court by its order dated 20.07.2009 has deferred the ''''consideration of I.A.No.3 til} adjudication of issue No.5 $/ on the ground that it relates to the maintainability of the suit and has to be heard and disposed of. J order which is impugned in the present _
4. Heard learned Advocates__'ap;Je'a1"in_g "
parties nainely i appearing for the learned Counsel appearing
5. It is the contention appearing for the 'that ought to have consizderedifiie application l.A.i\Io.3 since disposal of the same wou--ld i1aye_jja."bearii'ig on considering issue No.5 name}.y maintainability of the Suit and as . iéflcflontended by him that if I.A.N0.3 is to be issue No.5 is to be heard without cor1sid.gering;0 I.A.No.3 the very purpose of filing of would be defeated and as such he prays for 0 "setting aside the order passed by trial court and seeks " '-"for quashing of the order dated 20.07.2009 and a Q/, further direction is aiso sought to consider I.A.N_o__._3 to triai court Civil Judge to consider I.A.No.3 on support of his submission he relies upon in the case of P. Mabusab and soiism, reported in ILR 1989 Kar petitioner has also contendedfit-hat niideri. $1 of it the Limitation Act the fact asidetyo add a new plaintiff or defendant provisions of Section 21 of I.A.No.3 had to be before considering issue I\To.5.' ' ~ ff» _ gt'
6. "Per _ w.:Sri.S.R.Ravi Prakash, learned Co_unse_I" for respon_dent/ defendant would support the order tria} court and submits that at the Very first'vi'instance1'Vof the defendant's appearance plea has been ..raised regarding maintainability of the suit by A detailed written statement whereunder a specific ' piea has been taken regarding nonqnaintainability of W the suit in View of their being a bar under Section 69(2) of the Indian Partnership Act, 1932 and on thejyvof said plea issue No.5 had been framed by trial} court has rightly he1d.:issue tog, }'::.euu adjudicated first since it goes _ namely maintainability ofvthesuit and' cannot" V be considered without..V.deeidiiigVp_: support of his submission jndgment of this Court reported: vs. The Kamataktiii Corporation and Another
12. 1-earned Counsel appearing for the _parties,' following points arise for my consideration:
p Whether tridfeourt was juzstfled in deferring it of I.A.No.3 till issue No.5 was ' daj:;;.dit?dted and decided? What" Order?
" Re Point No.1: In order to appreciate the
- Afljgoinitention raised by the learned Advocates appearing g/.
for the parties it would be necessary to extractV_.~Qrder XIV Rule 2 of Code of Civil Procedure which under:
"2. Court to pronounce:-_t;'iici'gm'e'1'zt_; issues.--(1) Notwithstandmg. , m£;l::A~ a use . . ff' be disposed of on a7prelintinaryV Court shall, subject tollvthe' provisions 'of rule (2), pronounce all is,.5ués;'C {2} Where issues4'iJo.th'o,fL0f_,fact arise in the same sui:t,"'and: opinion that ,oarvt"V.'tIiereof may be dispéisedvh law only, it may _*f"1r"sty-"'tha't"'is*s'ue relates to- (aj of the Court, or "(by)a suitlbcreated by any law for A , , ythéugfze being inforce, for that-~p'urpose may, f it thinks fit, settlement of the other issues that issue has been determined, deal with the suit in accordance "witit the decision on that issue."
it in any suit after the issues are framed it is ~»vi1--icumbent upon the Court to adjudicate on all issues We subject to sub--Ru1e (2). Under sub--RuIe (2) a Court is entitled to hear or adjudicate an issue as a issue if two ingredients are satisfied nameijf, the claim made in the suit touches' upori,Ath_e"jiurist:iiction of the Court; and [2] when created by any law to adjudicate the» suit claim it made thereunder on"'rnerits'j"'an'd fli'n_such"a "event the Court would be entitled hearing of other issues and adj'U.di_eate__on
10. also be necessary to note the by the Hon'b1e Supreme Court in CM/S .Rebajeetu.'::_Builders and Developers Vs. M/s Naréfiyuqr¢aswcimy.Vqrici sons 82. Ors. reported in 2009 AIR » paragraph 67 Whereunder parameters for C an application for amendment has been laidiidoinm which reads as under:
it "£57. On critically analyzing both the English "and Indian cases, some basic principles emerge which ought to be taken into consideration while l allowing or rejecting the application for amendment.
(1) Whether the amendment imperative for proper it aczyadieationofthecase? A it [2] Whether the bonafde or A __ _A {3} The amendment fiisuch prejudice tonthe "which not be compensated terms of {4} fact lead to ' litigation:
amendment ' fundamentally changes nati_trae.'.anid.'*echaracter of the case? And ..i 't'6).As.V a..V_V_lgenet'al rule, the Court should declineluawtnendments if a fresh suit on famendment claims would be A by limitation on the date of A. fipplication. "
(Emphasis supplied by me) 1 1. In the said judgment the Honfible Apex Court " "has laid down the contours under which an application @/ for amendment is required to be considered and it is stated therein that it is not exhaustive and iilnstrative. Keeping these two aspects in of the present case are to be I-re?~exarn_ined.jti'V:v came to be flied on 22.09.2003 istpnain 1c1istpute«. the application for amendrnéfnt nameiytp was' filed on 05.08.2006Vis.__a1s0"nott:injclispute]"* Admittediy as on the date of amendment namely I.A.i§Io;:£?tVp:p1i:he ltclajrn' suit or in the application no t-- be'cfJIne'«.t.in1te,Abarred. 'Be as~._it~.. may, the issue now which revo1Ves'V"arou,vnd for. b.ei_j:1g considered by this Court is 'regard ivsgfhether I.A.No.3 was required to be ' defeVrre_d'.or_"considered prior to adjudication of issue . No;'5. "It specific contention of the defendants that suit i.tse.lf.V\42vas barred in View of specific bar under sub~ seam; 2 of Section 69 of Indian Partnership Act, 1932 since suit had been filed by a firm as partnership firm I which it was not. I.A.No.3 has been filed, whereiinder plaintiff wants to substitute the words "firm" in the plaint as "proprietary" aiid' sought for amendment to incorporate' proprietory business.
13. Considering on adjudication of issue is based on the plea raisedpbyp the.~aie'fei'1:dant., 11 of the written court were to adjudicate LA. No.3 as rightly:flcor1tend'eej:- Counsel for petitioner, the very of application for amendment wotillfl it get fruvstrated or truncated. In these circums_tance"sv it would be necessary for trial court to and then proceed to consider issue No.5an'd., not Vice-versa in as much as if issue No.5 is u.j"heid"««in favour of plaintiff suit will be dismissed. On the other hand, if I.A.No.3 is considered and is allowed, aw issue No.5 would recede to background or if I.A.No.3 is rejected even then trial Court can consider later on. In View of these circumstances thi-s:"Co1irt"'i'et:'of the considered View that order of trial I.A.No.3 deserves to be deferred ._
14. The learned Couns-e'l""for respo1:de'ntV'h4as" rfelied"
upon the judgment of re'1"er:r'e¢i..~=/LO supra by drawing the attentioxrof paragraph 12 which reads3aS'u:f1der=A;
"12. of maintainability lay 'the-..defendant and issue was at the best the trial _ _vcou'rt'~shoulc¢l "heard only on the question " and then depending upon .:p':*onouncen1ent whether the suit is or not proceeded further under o.«d e ;: Rule 2 of cpc. Not following this ~. well settled and mandatory procedure, in our view renders the entire judgement as illegal and liable to be set aside."
*ILR 2008 KAR 203-4
15. As noted above Whether the issue relates to the bar of jurisdiction of the Court to try the .suit"'or if there is a absolute bar created in the suit the claim, the said issue requires to be a_o]j.u_'dicat.ie'd4_as' a ._ preliminary issue. In the case of Gopalalirishria.'aisuitj came to be filed by the borroxyer seething for'd~d.e:cI:ara;tion that the mortgage of the sVchedu_1ue":property in favour of KarnatakaA----S1'°--ate'_V: Fin.aii.cia1'~Corporation had stood extingui_shedv_..-- of law and consequential frelief of perpetual" injunction and ' sought. A plea had been raised rriaiiitainability of the suit by the defendantsdiny'View ofiéection 28 and 29 of the State . " Corporation Act, 1951 and in this background dVby}this Court in Gopalakrishnas case that when V.__*q'ue.stion of maintainability was raised the iugdgrnenst has to be pronounced on the maintainability the maintainability which was considered in ~*'-(}opaiakrishna's case was with reference to the ('R/t jurisdiction of the Court which is not so in the instant case particularly when I.A.No.3 for amendrneht pending. it i V V V.
16. However, in the instaiitcase vloeen sought for by the defendant suit contending that there 69(2) of the partnership :4 'want; to cure by way of amendment Hence, consideration direct bearing on adjudication uti':1€§"tZ1ueStiOI1 of deferring consideration defeat the very purpose of fiiing of would not sub--serve the cause ofjustice. Ii1i._t_-hfise circumstances, I am of the ' co11.sidered«,§iew_ that judgment of Gopalakrishna relied upon learned Counsel for respondent is inappiileahie to the facts of the present case.
17. Re Point No.2: In View of the discussions riiade herein above the order of trial court dated %/