Karnataka High Court
Sri. R. Charan Kumar vs Sri B R Chandrashekar on 29 January, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:3882
WP No. 28398 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 28398 OF 2023 (GM-CPC)
BETWEEN:
SRI. R. CHARAN KUMAR
AGED ABOUT 48 YEARS
S/O. RAJANNA
R/AT. NO.27/28, 18TH CROSS,
DASARAHALLI MAIN ROAD,
BHUVANESHWARI NAGAR,
HEBBAL KEMPAPURA,
BENGALURU - 560 024,
ALSO AT
R/AT.NO.135, MALIGENAHALLI,
BIDALUR POST,
DEVANAHALLI TALUK - 562 110,
BENGALURU RURAL DISTRICT.
...PETITIONER
Digitally
signed by (BY SRI. VIVEK B.N. FOR
VANDANA S
Location:
SRI. ABHINAV R., ADVOCATE)
HIGH COURT AND:
OF
KARNATAKA
1. SRI. B.R. CHANDRASHEKAR,
AGED ABOUT 41 YEARS,
S/O. SRI. C.B. RAJU,
2. SRI. B.R. KARTHIK,
AGED ABOUT 37 YEARS,
S/O. SRI. C.B. RAJU,
RESPONDENT NOS.1 TO 2 ARE
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NC: 2024:KHC:3882
WP No. 28398 of 2023
R/AT. NO.951, NAGARTHARPET STREET,
DEVANAHALLI, BENGALURU RURAL DISTRICT- 562 110.
3. SRI. C.B. RAJU,
AGED ABOUT 72 YEARS,
S/O. LATE CHANNADEVARAPPA,
R/AT. NAGARTHARPET,
DEVANAHALLI TOWN,
BENGALURU RURAL DISTRICT - 562 110.
4. SMT. B.R. DIVYA VANI,
AGED ABOUT 44 YEARS,
D/O. SRI. C.B. RAJU,
W/O. S.R. MALLIKARJUN,
R/AT. FLAT NO.306, BLOCK 'A',
SYCON PRESIDE APARTMENTS,
HORAMAVU MAIN ROAD,
BENGALURU - 560 043.
5. SMT. B.R. CHAITHRA,
AGED ABOUT 43 YEARS,
D/O. SRI. C.B. RAJU,
W/O. SUGNANA SHANMUKHA,
R/AT. NO.28, J.C. EXTENSION,
VIJAYAPURA TOWN, DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT - 24.
...RESPONDENTS
(BY SRI. VIJAYA KUMAR K., ADVOCATE FOR R-1 AND R-2
SRI. K. SHIVASHANKAR, ADVOCATE FOR R-3)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
07/12/2023 PASSED BY THE I ADDL. SR. CIVIL JUDGE BENGALURU
RURAL DISTRICT, BENGALURU, IN OS. NO. 1216/2021 AT
ANNEXURE-F TO THE WP AND CONSEQUENTLY ALLOW I.A. NO.3
DATED 26/08/2023 FILED BY THE PETITIONER IN O.S. NO.1216/2021
AT ANNEXURE-D TO THE WP BY ALLOWING THE PRESENT
PETITION.
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NC: 2024:KHC:3882
WP No. 28398 of 2023
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition by the defendant No.4 in O.S.No.1216/2021 is directed against the impugned order dated 07.12.2023 passed by the I Addl. Senior Civil Judge, Bangalore Rural District, Bangalore, whereby the application I.A.No.3 filed by the petitioner-defendant No.4 seeking framing of two additional issues was dismissed by the Trial Court.
2. Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record.
3. A perusal of the material on record will indicate that the respondent Nos.1 and 2-plaintiffs instituted the aforesaid suit against the petitioner-defendant No.4 and other defendants for partition and separate possession of their alleged share in the suit schedule immovable properties and for other reliefs. In the said suit, the petitioner-defendant No.4 has entered appearance and is contesting the same along with other defendants. Prior to commencement of trial, the petitioner-defendant No.4 filed the -4- NC: 2024:KHC:3882 WP No. 28398 of 2023 instant application seeking framing two additional issues as here under:
"1. Whether the Defendant No.4 proves that partial partition suit is not maintainable?
2. Whether the Defendant No.4 proves that the suit of the plaintiffs is barred by law?"
4. The said application having been opposed by the respondents, the Trial Court proceeded to pass the impugned order rejecting the application, aggrieved by the petitioner-defendant No.4, is before this Court by way of the present petition.
5. A perusal of the impugned order will indicate that the Trial Court has examined the merit/demerits of the rival contentions while rejecting the application which is impermissible in law in as much as while deciding as to whether additional issues ought to be framed or not, it is only pleadings of the parties that ought to be looked into in terms of Order 14 Rule 1,2 and 5 of CPC. In the instant case, the specific defence put forth by the petitioner- defendant No.4 in the written statement at Para - 14 and 15 is to the effect that the suit for partial partition is not maintainable and in the light of Section-3 of the Limitation Act1963, I am of the -5- NC: 2024:KHC:3882 WP No. 28398 of 2023 considered opinion, that both additional issues sought to be framed by the petitioner-defendant No.4 would arise in the facts and circumstances of the instant case and failure to appreciate to this by the trial has resulted in miscarriage of justice warranting interference in the present petition.
6. In the result, I pass the following:
ORDER
(i) Petition is hereby allowed.
(ii) Impugned order dated 07.12.2023 in O.S.No.1216/2021 passed by the I Addl. Senior Civil Judge, Bangalore Rural District, Bangalore, is hereby set aside.
(iii) I.A.No.3 dated 26.08.2023 filed by the petitioner under Order 14 Rule 5, CPC stands allowed.
Sd/-
JUDGE DHA List No.: 2 Sl No.: 26