Smt.B.N.Asha vs Smt.Sunitha
2022 Latest Caselaw 5664 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 29TH DAY OF MARCH, 2022

                         BEFORE

       THE HON'BLE MR. JUSTICE E.S.INDIRESH

           W.P.NO.3858 OF 2022 (GM-CPC)

BETWEEN

SMT.B.N.ASHA
D/O LATE P NARASIMHA MURTHY
AGED ABOUT 44 YEARS
R/ATNO 252, 1ST BLOCK, 3RD BLOCK
PEENYA 1ST STAGE PEENYA
BANGALORE - 560058.

                                        ....PETITIONER
(BY SRI S VISWESWARAIAH, ADVOCATE)

AND

1. SMT.SUNITHA
W/O LATE P NARSIMHA MURTHY
AGED ABOUT 56 YEARS
R/AT NO 252,
KAR MOBILE ROAD
4TH MAIN 1ST BLOCK
PEENYA 1ST STAGE
PEENYA
BENGALURU - 560058

2. SRI B N MANJUNATHA
S/O LATE P D NARASAPPA
AGED ABOUT 48 YEARS
R/AT NO 556 KUVEMPU ROAD
NEAR MANJUNATHA OIL STORES
2ND BLOCK PEENYA
BENGALURU - 560058
                               2




3 . SMT B N SUMA
D/O LATE P D NARASAPPA
AGED ABOUT 41 YEARS
R/AT No.252, GROUND FLOOR
LAKSHMIKANATHA NILAYA
KAR MOBILE ROAD
1ST BLOCK 1ST STAGE PEENYA
BENGALURU - 560058

4. SMT B N LAKSHMIKANTHA
S/O LATE P D NARASAPPA
AGED ABOUT 39 YEARS
R/ATNO 252
GROUND FLOOR LAKSHMIKANATHA NILAYA
KAR MOBILE ROAD
1ST BLOCK 1ST STAGE
PEENYA BENGALURU - 560058

                                             ....RESPONDENTS

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
PASSED BY THE HONBLE XXIV ADDL. CITY CIVIL AND SESSIONS
JUDGE, BENGALURU PASSED ON I.A.NO.26 IN O.S.NO.8146 OF
2008 DATED 07TH FEBRUARY, 2022 PRODUCED AT ANNEXURE-A
BY ALLOWING THE WRIT PETITION AND CONSEQUENTLY ALLOW
I.A.NO.XXVI FILED BY THE PETITIONER.

      THIS PETITION COMING ON FOR PRELIMINARY HEARING IN
THIS DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

This writ petition is filed by defendant No.1 in OS No.

8146 of 2008 on the file of the Principal City Civil and

Sessions Judge, Bangalore, challenging the order dated

07.02.2022 passed on IA.26, rejecting the application.

2. Brief facts are that, the plaintiff has filed a suit

challenging the judgment and decree dated 16.06.2007

passed in Original Suit No.8042 of 2005 as null and void and

accordingly, sought for relief of declaration and permanent

injunction. Defendants entered appearance and filed written

statement. The trial Court framed issues based on the

pleadings on record. In the meanwhile, defendants 1 and 4

have filed application-IA.26, under Order 14 Rule 2 of Code

of Civil Procedure to recast issue Nos.3 and 4 and to consider

additional issue No.1 as preliminary issue and the said

application was resisted by the plaintiff. The trial Court by

impugned order dated 07.02.2022, dismissed the application.

Feeling aggrieved by same, defendant No.1 has preferred

this Writ Petition.

3. I have heard Sri S.Vishweswaraiah, learned

counsel appearing for the petitioner, who argued that,

defendants have raised objection with regard to the

jurisdiction and court fee and therefore, the trial Court ought

to have considered the said issues as preliminary issues and

decide the matter.

4. In this connection, I have carefully considered

the writ papers and finding recorded by the trial Court,

wherein, it is forthcoming that, IA.17 has been filed by

defendants 1 and 4 under Order VII Rule 10 of Code of Civil

Procedure challenging the jurisdictional issue and the said

application was dismissed by the trial Court by order dated

3.10.2017 and in that view of the matter, I am of the view

that the trial Court is justified in rejecting IA.26. That apart,

the Hon'ble Apex Court in the case of Nusli Neville Wadia

vs Ivory Properties and others reported in AIR 2019 SC

5125 has held that the issue relating to limitation cannot be

decided as preliminary issue and same is mixed question of

law and fact. The Hon'ble Apex Court further held that the

unless the question is pure question of law, it cannot be

decided as preliminary issue. In the instant case, the

jurisdictional aspect has already been decided in application-

IA.17. Therefore, prayer made by the petitioner cannot be

accepted. That apart, the Full Bench of this court in the case

of Venkatesh R Desai vs Smt.Pushpa Hosmani and

others reported in ILR 2018 KAR 5095 has held that when

issue of valuation and court fee is raised in a civil suit, on the

objection of the defendants, the same is not invariably

required to be tried as a preliminary issue and it could be

tried as preliminary issue, if it relates to jurisdiction. In that

view of the matter, I do not find good grounds to interfere

with impugned order passed by the trial Court. Accordingly,

Writ Petition is dismissed as devoid of merits.

Sd/-

JUDGE

SB