Karnataka High Court
Arun Kumar vs Puttur Co-Operative Town Bank Ltd on 19 January, 2022
Bench: Suraj Govindaraj
W.P. NO.55976/2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.55976 OF 2016 (GM-CPC)
BETWEEN:
ARUN KUMAR,
S/O LATE KORAGAPPA,
AGED ABOUT 50 YEARS
R/AT VA BROTHERS PHOTOSTATE CONTROL,
NEAR PUTTUR TOWN CO-OP BANK LTD.,
PUTTUR D.K DISTRICT.
... PETITIONER
(BY SRI. MADHUKESHWARA, ADVOCATE FOR
SRI. SACHIN B.S., ADVOCATE)
AND:
PUTTUR CO-OPERATIVE TOWN BANK LTD
NO.181,PUTTUR
D.K - 574 201
REPRESENTED BY ITS
GENERAL MANAGER
NAHUSHA P V,
S/O LATE P VENKATRAMANA BHAT
AGED ABOUT 38 YEARS
R/A PALANEER IN MADNUR VILLAGE,
P.O.KAV, PUTTUR, D.K - 575 201.
... RESPONDENT
(BY SRI. BALAKRISHNA SHASTRY, ADVOCATE)
-----
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 30.07.2016 PASSED IN O.S.237/2014
ON THE FILE OF PRL. CIVIL JUDGE AND JMFC PUTTUR AT
ANNEX-A IN SO FAR AS DECLINING TO TREAT THE ADDITION
ISSUE NO.1 AS PRELIMINARY ISSUE AND DIRECTING THE
W.P. NO.55976/2016
2
PARTIES TO ADDUCE EVIDENCE ON ADDL. ISSUE NO.1 ALONG
WITH OTHER ISSUES;
THIS WRIT PETITION COMING ON FOR PRELIMINARY -
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the
following reliefs:
i) Issue a writ of certiorari or order direction
quashing the impugned order dated
30.07.2016 passed in OS No.237 of 2014 on
the file of Principal Civil Judge and JMFC
Puttur as per Annexure-A in so far as
declining to treat the addition issue no.1 as
preliminary issue and directing the parties to
adduce evidence on additional issue no.1
along with other issues.
ii) Issue writ of mandamus directing the trial
court to treat the additional issue no.1 as
preliminary issue and record findings thereon
first by giving an opportunity to the petitioner
to lead evidence on additional issue no.
iii) Issue any other writ or order or direction that
deems fit to grant in the circumstances of the
case in the interest of justice and equity.
2. By way of impugned order dated 30.07.2016 in
O.S.No.237/2014 the Principal Civil Judge, JMFC
Puttur, rejected the oral request made by the
W.P. NO.55976/2016
defendants therein to treat additional issue Nos. 1 &
2 as preliminary issue.
3. Sri. Madhukeshwara, learned counsel appearing for
the petitioner submits that the additional issues go to
the root of the matter and they need to be decided as
preliminary issues so as to obviate the need of the
lengthy trial in the matter. He submits that these
two issues could be decided on the basis of oral
arguments and no evidence is being required.
4. Per contra, Sri. G. Balakrishna, learned counsel for
the respondent would submit that the additional
issues would have to be determined on the basis of
the pleadings made in para 4 & 5 of the Written
Statement which would necessarily require evidence
to be lead.
5. Heard Sri Madhukeshwara, learned counsel for the
petitioner and Sri. G. Balakrishna, learned counsel
for the respondent.
6. The said Order XIV Rule 2 is reproduced hereunder
for easy reference:
W.P. NO.55976/2016
(2. Court to pronounce judgment on all
issues.
(1) Notwithstanding that a case may be
disposed of on preliminary issue, the
Court shall, subject to the provisions of
sub-rule (2), pronounce judgment on all
issues.
(2) Where issues both of law and of fact
arise in the same suit, and the Court is
of opinion that the case or any part
thereof may be disposed of on an issue
of law only, it may try that issue first if
that issue relates to-
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for
the time being in-force, and for that
purpose may, if it thinks fit, postpone
the settlement of the other issues until
after that issue has been determined,
and may deal with the suit in
accordance with the decision on that
issue.)
7. Having perused the additional issues which has been
framed on the basis of the averments made in the
Written Statement more particularly at para 4 & 5 it
is seen that there are several facts which have been
stated in the said paragraph leading to the framing of
the said additional issues in view of the same I am of
the considered opinion that said issues cannot be
determined by way of oral argument but would
require evidence to be lead on those aspects
W.P. NO.55976/2016
considering that the very suit itself is one for
ejectment and these aspects touch upon merits of the
matter it would not be permissible for two of the
issues to be treated as preliminary issue and
thereafter, the trial to be conducted which would only
be a replication of the evidence to be lead.
8. The additional issues do not qualify as such to be
preliminary issues in terms of order XIV Rule 2 of the
Code of Civil Procedure.
9. The additional issues in my considered opinion would
not be an issue of law only but relate to facts also the
same being mixed question of fact of law as such I do
not find any reason to interfere the decision of trial
Court. writ Petition stands dismissed.
Sd/-
JUDGE
DS
