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HON'BLE SRI JUSTICE K.SURENDER
CIVIL REVISION PETITION No.2058 of 2023
ORDER:
This Civil Revision Petition is filed aggrieved by the order dt.14.06.2023 passed in IA.No.69 of 2023 in OS.No.7 of 2012, by the I Additional District & Sessions Judge, Jagtial, wherein the learned District Judge dismissed the petition filed by the petitioner/defendant No.5 under Order-14, Rule 2(2) r/w.151 of the CPC with a prayer to decide the additional issue framed on 29.03.2023 as Preliminary Issue.
2. Heard. Perused the record.
3. The petitioner herein is the defendant No.5 in the counter claim filed by defendant No.4 in trial Court who filed petition under Order-14 Rule-2(2) r/w.151 of the CPC. It is the case of the petitioner that the plaintiff filed a suit for partition and separate possession against the defendants 1 to 3 in respect of land in Survey No.539/A to an extent of Ac.1.17 guntas. During the pendency of the suit, the 1st defendant died and the 4th defendant was brought on record as Legal Representative of her husband/1st respondent. 4th defendant filed a counter claim in the suit claiming that she is having 2 1/3rd share in the counter claim land in Survey No.484 to an extent of Ac.5.19 guntas. The respondents in the trial Court filed written statement regarding the counter claim and pleaded that he is not a co-parcenary member of Hindu Joint Family of late Kanukuntal Ragaiah @ Raghavareddy and further stated that earlier the issue has not been framed as to whether the defendant No.4 has locus standi to file counter claim. In the said circumstances, the trial Court allowed IA.No.319 of 2013 and framed additional issue on 29.03.2023 to the effect that 'whether the counter claim filed by the 4th defendant is maintainable."
4. The impugned order was passed dismissing the petition filed by the petitioner/defendant No.5 in the counter claim that the counter claim issue framed on 29.03.2023 has to be decided as preliminary issue.
5. Learned trial Court Judge found that at the stage it cannot be decided regarding the additional issue framed on the basis of counter claim of 4th defendant is maintainable or not and it can only be decided during the course of adducing evidence in the main suit. Further, since the issue was already 3 been framed, the relief of deciding it as preliminary issue cannot be granted. Accordingly the IA was dismissed.
6. The learned counsel appearing for the petitioner herein would submit that the learned District Judge committed an error in refusing to decide the counter claim as preliminary issue since the subject property of the suit is different from what was claimed in the counter claim. Accordingly, prayed to allow the present revision.
7. As rightly found by the learned trial Judge, there is no necessity to decide in the partition suit regarding the counter claim of the 4th defendant. The Judgment of the Honourable Supreme Court relied on by the counsel for the petitioner in Sathyanath v. Sarojamani 1 has no application in the present facts.
8. Only those issues that can be decided as preliminary issues which fell within the ambit of clause (a) relating to the 'jurisdiction of the Court' and (b) which deal with the 'bar to the suit created by any law for the time being in force'. 1 2022 (4) ALD 61 (SC) 4
9. Both the grounds are not raised in the present application to decide the issue framed on 29.03.2023 as preliminary issue.
10. Accordingly, the Civil Revision Petition stands dismissed.
As a sequel thereto, miscellaneous petitions, if any, pending in this Revision Petition, shall stands closed.
_________________ K.SURENDER, J Date: 12 .09.2023 tk 5 HON'BLE SRI JUSTICE K.SURENDER CIVIL REVISION PETITION No.2058 of 2023 Dt.12 .09.2023 tk