Sri Srinivasa Reddy vs Sri Mohan
2022 Latest Caselaw 1630 Kant

                              1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 3RD DAY OF FEBRUARY, 2022

                        BEFORE

        THE HON'BLE MR. JUSTICE ASHOK.S.KINAGI


       WRIT PETITION NO.53469/2017 (GM-CPC)

BETWEEN:

SRI SRINIVASA REDDY
S/O LATE VENKATASWAMY REDDY
AGED ABOUT 55 YEARS,
R/A 183, DODDAKANNALLI,
CAMELARAM POST
SARJAPURA MAIN ROAD
BANGALORE-560035

BY ITS GPA HOLDER
SRI A SRINIVAS
S/O LATE K V ABBAIAH REDDY
AGED ABOUT 51 YEARS
R/A NO.317/2, 8TH CROSS,
8TH BLOCK, KORAMANGALA,
BANGALORE-560 095.

                                         ...PETITIONER
(BY SRI.MITHUN.G.A., ADVOCATE)

AND:

1.     SRI MOHAN
       S/O LATE RAMAREDDY
       AGED ABOUT 46 YEARS,

2.     SMT PUSHPA
       D/O LATE RAMAREDDY
       AGED ABOUT 48 YEARS
       R/AT BOORUKUNTE VILLAGE
                               2




       SARJAPURA HOBLI
       ANEKAL TALUK
       BANGALORE DISTRICT-560 036.

3.     SMT CHIKKA PILLAMMA
       W/O LATE RAMAREDDY
       AGED ABOUT 66 YEARS,


4.     SRI SRINIVASAREDDY
       S/O LATE RAMAREDDY
       SINCE DEAD REPRESENTED BY

4 (a) MUNIRATHNAMMA
      W/O LATE SRINIVASREDDY
      MAJOR

4(b)   PRAKASH
       S/O LATE SRINIVASREDDY
       AGED ABOUT 52 YEARS

4(c)   LOKESH
       S/O LATE SRINIVASREDDY
       AGED ABOUT 50 YEARS

       R-4(a) to (c) ARE
       R/AT BOORUKUNTE VILLAGE
       SARJAPURA HOBLI
       ANEKAL TALUK
       BANGALORE DISTRICT-560 036.

4(d)   JAYAMMA
       THE 2ND WIFE OF LATE SRINIVASA REDDY
       MAJOR

4(e)   BABY
       D/O LATE SRINIVASAREDDY
       BORN TO 2ND WIFE JAYAMMA
       MINOR

4(f)   CHITRA
       D/O LATE SRINIVASAREDDY
       BORN TO 2ND WIFE JAYAMMA
                             3




     MINOR
     DEFTS.4(d) to (f) ARE MINORS
     REPRESENTED BY
     THEIR NATURAL GUARDIAN
     DEFT.NO.4(d) MOTHER

     DEFT.NOS.4(d) TO (f) ARE
     R/AT KONAPPANA AGRAHARA
     BEGUR HOBLI
     BANGALORE SOUTH TALUK
     BANGALORE DISTRICT-560 036.

5.   SRI VENKATSWAMY REDDY
     S/O LATE RAMAREDDY
     MAJOR

     ALL ARE R/AT
     BOORUKUNTE VILLAGE
     SARJAPURA HOBLI
     ANEKAL TALUK
     BANGALORE DISTRICT-560 036.

6.   SMT LAKSHMAMMA
     W/O CHINNASWAMY REDDY
     MAJOR
     R/A H HOSAKOTE
     LAKKUR HOBLI,
     HULIMANGALA POST
     MALUR TALUK
     KOLAR DISTRICT

7.   SMT ANITHA
     D/O R VENKATASWAMY
     AGED ABOUT 44 YEARS,

8.   SRI V JAGADEESH
     S/O R VENKATASWAMY
     AGED ABOUT 42 YEARS,

     R-7 AND R-8
     R/AT BOORUKUNTE VILLAGE
     SARJAPURA HOBLI, ANEKAL TALUK
     BANGALORE DISTRICT-560 036.
                             4




9.     SRI R GOPAL REDDY
       S/O LATE RAMAREDDY
       AND LATE JAYAMMA
       AGED ABOUT 69 YEARS,
       R/A BOORUKUNTED VILLAGE,
       NOW R/A GANDHIPURA
       BIDARAHALLI HOBLI,
       BANGALORE EAST TALUK
       BANGALORE DISTRICT-560 036.

10 .   SMT K P DAYANANDINI
       D/O K M PRABHAKARA REDDY
       AGED ABOUT 30 YEARS,
       R/A NO.635/1, 5TH A CROS,
       6TH BLOCK
       KORAMANGALA
       BANGALORE-560095

11.    SRI K M PRABHAKARA REDDY
       S/O LATE K MUNIREDDY
       AGED ABOUT 69 YEARS,
       R/AT NO.16
       7TH MAIN,
       80 FEET ROAD I BLOCK,
       KORAMANGALA
       BANGALORE-560095
                                         ... RESPONDENTS

(BY SRI.V.B.SHIVAKUMAR FOR R1 & R2., ADVOCATE
    SRI.T.SAMPANGI, ADVOCATE FOR R3; R4(D TO F) & R6;
    SRI.L.VIJAYA KUMAR ADVOCATE FOR R10, R4(A), 4(C), R,
    R7, R8, R9, ADVOCATE; R11-SERVED; R11 IS LR OF
    DECEASED
    R10; NOTICE TO R4(B) IS D/W)


      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER DATED 16.11.2017 VIDE ANNEX-A PASSED
BY THE LEARNED PRL. CIVIL JUDGE (JR. DN.,) ANEKAL IN
O.S.546/1996 ON APPLICATION UNDER SEC. 151 FILED BY THE
PETITIONER / 7TH DEFENDANT AND DIRECT THE COURT
BELOW FOR ENTERTAINING THE DOCUMENTS PRODUCED FOR
                                   5




ESTABLISHING THE VALUATION OF THE PROPERTY AND TO
PASS FINAL ORDERS ON THE CASE WITH REGARD TO
PECUNIARY JURISDICTION.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:

                            ORDER

The petitioner being aggrieved by the order

dated 16.11.2017 passed in O.S.No.546/1996 by the

Principal Civil Judge (Jr.Dn.), Anekal, has filed this

writ petition.

2. Brief facts leading to the filing of the

present petition, as borne out from the pleadings, are

as follows:

Respondent Nos.1 and 2 have filed a suit in

O.S.No.546/1996 for the relief of partition and

separate possession in respect of suit schedule

properties. During the pendency of the suit,

respondent Nos.7 and 8 were impleaded in the said

suit and also sought for consequential relief of

declaration, declaring the sale deed dated 05.12.2005

executed by the legal representatives of the deceased

- respondent Nos.4, 5, 7 and 8 in favour of the

petitioner in respect of Item No.1 of the suit schedule

properties. The legal representatives of respondent

No.4 have filed a written statement and denied the

averments made in the plaint.

3. The petitioner has filed his written

statement. In the said written statement, it is

contended that the suit is not maintainable and

further contended that the valuation made by

respondent Nos.1 and 2 is not correct and the Court

Fee paid by them is insufficient.

4. The petitioner has also filed the additional

written statement. In the additional written statement,

the petitioner has taken specific contention that the

trial Court has no pecuniary jurisdiction to try the suit.

The trial Court on the basis of the pleadings has

framed the issues and additional issues. The trial

Court has framed the additional issue on 11.09.2017,

wherein additional issue No.2 is as under:

"Whether defendant No.7 proves that this Court is not having pecuniary jurisdiction to try the suit?"

5. Thereafter, the petitioner has filed an

application under Section 151 of CPC to consider

additional issue No.2 framed on 11.09.2017 as a

preliminary issue. In support of an application, the

petitioner has filed an affidavit contending that the

petitioner after remand of the case as per the

direction of the Appellate Court Item Nos.3 and 4 are

included in the suit. It is stated that market value of

Item No.3 - property is Rs.2,40,90,000/-. In the sale

deed dated 12.10.2011, the market value of Item

No.3 is shown as Rs.2,71,92,500/-. Insofar as Item

No.1 is concerned, it is more than a crore.

6. It is further contended that the trial Court

has no pecuniary jurisdiction to try the suit. The said

application was opposed by respondent Nos.1 and 2.

The trial Court, after hearing the matter, rejected the

application filed by the petitioner. Hence, the

petitioner being aggrieved by the same, has filed this

writ petition.

7. Heard the learned counsel for the petitioner

and the learned counsel for the respondents.

8. Learned counsel for the petitioner submits

that the trial Court on the basis of the additional

written statement filed by the petitioner has framed

additional issue No.2 on 11.09.2017. He further

submits that the trial Court ought to have considered

additional issue No.2 as a preliminary issue. On the

contrary, the trial Court has deleted additional issue

No.2 by passing the impugned order. He further

submits that the impugned order passed by the trial

Court is arbitrary and perverse. Hence, on these

grounds, he prays to allow the petition.

9. Per contra, learned counsel for respondent

Nos.1 and 2 submits that though the petitioner has

taken a specific defence in the written statement that

the trial Court has no pecuniary jurisdiction, it has

framed additional issue No.2 on 11.09.2017 when the

trial Court ought to have considered additional issue

No.2 as a preliminary issue. He further submitted that

the trial Court has committed an error in striking out

additional issue No.2. Hence, on these grounds, he

prays to dispose of the petition.

10. Heard and perused the records and

considered the submissions of the learned counsel for

the parties.

11. It is not in dispute that respondent Nos.1

and 2 filed a suit for partition and separate possession

only in respect of item Nos.1 and 2 and thereafter, the

suit came to be decreed and appeal was preferred.

The Appellate Court remanded the matter. After

remand, item Nos.3 and 4 are included in the suit

schedule properties. It is the contention of the learned

counsel for the petitioner that market value of Item

Nos.3 and 4 are not mentioned. As far as Item No.3 is

concerned, it is Rs.2,40,90,000/- and insofar as item

No.1 is concerned, it is more than a crore. It is further

contended that the market value of item No.3 is

shown as Rs.2,40,90,000/- in the registered Sale

Deed dated 12.10.2011. The trial Court on the basis

of the pleadings, framed issues. Thereafter, after

recording evidence, decreed the suit vide judgment

and preliminary decree dated 17.04.2010. The

petitioner aggrieved by the judgment and preliminary

decree, preferred an appeal in R.A.No.26/2010. The

petitioner filed an application for production of

additional documents. The First Appellate Court

allowed the appeal and also application for production

of additional evidence and remitted the matter to the

Trial Court.

After remand, the petitioner has filed an

additional written statement, wherein he has taken a

specific defence in the additional written statement

that the trial Court has no pecuniary jurisdiction to try

the suit. The trial Court on the basis of the additional

written statement filed by the petitioner has framed

additional issues on 11.09.2017. Additional issue No.2

pertains to jurisdiction. When the petitioner has taken

a specific contention that the trial Court has no

pecuniary jurisdiction, it ought to have considered the

said issue as a preliminary issue. The issue of

jurisdiction is invariably required to be tried as

preliminary issue. The said issue goes to the root of

jurisdiction. If the petitioner proves the additional

issue No.2, then the trial Court would not get

jurisdiction and can skip the process of recording

evidence on merits of the case and can save the

precious time of the Court. The said view is reiterated

by the Hon'ble Division Bench of this Court in the case

of VEERANGOUDA VS. SHANTA KUMAR @ SHANTAPPA GOWDA

reported in ILR 2009 KAR 887, where it has held as

under:

"The only exception is where issues relates to 'jurisdiction of the Court' or 'a bar to the suit created by any law for the time being in force', which are purely issues of law, and the case or any part threreof may be disposed of in answering that issue, the Court may try that issue first i.e., as a preliiminary issue."

12. In the present case, the trial Court has not

followed the procedure and passed the impugned

order and further striked out the additional issue No.2

framed on 11.09.2017. The trial Court has committed

an error in passing the impugned order. In view of

the above discussion, I pass the following:

ORDER

i. The writ petition is allowed.

ii. The impugned order dated 16.11.2017 is hereby set aside.

iii. The Trial Court is directed to treat the additional issue No.2 framed on 11.09.2017 as a preliminary issue.

iv. The trial Court is directed to record the evidence on the additional issue No.2 and pass appropriate orders, in accordance with law.

v. The trial Court is directed to decide the additional issue No.2 within a period of six months from the date of receipt of a copy of this order.

Sd/-

JUDGE

SJK