Karnataka High Court
Raphael Castelino vs Ivan Castelino on 12 October, 2023
Bench: Dr.H.B.Prabhakara Sastry
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NC: 2023:KHC:37368
WP No. 2701 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
WRIT PETITION NO. 2701 OF 2023 (GM-CPC)
BETWEEN:
RAPHAEL CASTELINO
AGED ABOUT 60 YEARS
S/O LATE LEO CASTELINO
R/AT BALLOOR, NO 76
BADAGABETTU VILLAGE
KORANGRAPADY 574118
UDUPI TALUK
UDUPI DISTRICT
...PETITIONER
(BY SRI. CHANDRANATH ARIGA K., ADVOCATE)
AND:
1. IVAN CASTELINO
AGED ABOUT 67 YEARS
S/O LATE SIMON CASTELINO
Digitally signed
2. DAVID ROBERT CASTELINO
by
BHARATHIDEVI
K KORLAHALLI
AGED ABOUT 65 YEARS
Location: High
Court of
Karnataka S/O LATE SIMON CASTELINO
3. MRS JASCINTHA CASTELINO
AGED ABOUT 62 YEARS
D/O LATE SIMON CASTELINO
4. MELWIN WILSON CASTELINO
AGED ABOUT 60 YEARS
S/O LATE SIMON CASTELINO
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WP No. 2701 of 2023
ALL ARE R/AT NEAR VIJAYA BANK
KORANGRAPADY 574118
BAILUR 76
BADAGABETTU VILLAGE
UDUPI TALUK
5. PHILOMINA D'SOUZA
AGED ABOUT 73 YEARS
W/O DENIS D'SOUZA
R/AT NEAR VIJAYA BANK
KORANGRAPADY 574118
BAILUR 76
BADAGABETTU VILLAGE
UDUPI TALUK
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 29.11.2022 PASSED IN O.S NO. 336/2010 ON THE
FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC UDUPI
(ANNEXURE-G); ALLOW THE APPLICATION NO. IN O.S NO.
336/2010 ON THE FILE OF THE IST ADDITIONAL CIVIL JUDGE AND
JMFC UDUPI ANNEXURE-E; GRANT AN INTERIM ODER TO STAY THE
FURTHER PROCEEDINGS IN O.S NO. 336/2010 ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE AND JMFC UDUPI.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THROUGH PHYSICAL HEARING/VIDEO CONFERENCE THIS
DAY, THE COURT MADE THE FOLLOWING:
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WP No. 2701 of 2023
ORDER
The present respondents No.1 to 4 as plaintiffs had
instituted a suit against the present petitioner and present
respondent No.5, arraigning them as defendants No.7 and 2
respectively along with defendants No.3 to 6, 8 and 9 in
O.S.No.336/2010 in the Court of the Additional Civil Judge and
JMFC, Udupi (hereinafter for brevity referred to as 'trial Court')
for the relief of permanent injunction, restraining the
defendants, their men, servants and agents etc., from blocking
or obstructing the plaint mentioned road of the width of 18
feet as described in the plaint schedule. The defendants
appeared through their counsel and contested the matter by
filing the written statement.
After framing the issues the trial Court proceeded to
record the evidence of the parties. It is submitted now that the
suit is at the stage of further cross-examination of DW-1. At
that stage, the present petitioner who was defendant No.7 has
filed I.A.No.16 under Section 94(e), Order XIV Rule 2 Sub Rule
2 and Rule 5 and Section 151 of Code of Civil Procedure, 1908
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(as amended) read with Section 11(2) of the Karnataka Court-
Fees and Suits Valuation Act XVI of 1958 and Rule 18(2) of
this Karnataka Civil Rules of Practice, 1967 for framing of an
additional issue and to hear it as a preliminary issue. After
inviting the objections the trial court by its impugned order
dated 29.11.2022 was pleased to dismiss the said I.A.No.16.
Aggrieved by the same the applicant in I.A.No.16 (defendant
No.7) has preferred this writ petition.
2. Heard the submission of the learned counsel for the
petitioner who is physically present.
3. A perusal of the memorandum of petition,
impugned order and annexures filed along with the
memorandum of petition which includes the copies of the
plaint, written statement etc., would go to show that the trial
Court has framed the following issues in the matter.
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" Issues
1. Whether plaintiff proves that there exists
18 ft road running on the western side of
the item No.1 and 2 of plaint B schedule
property to reach A schedule property?
2. Whether the plaintiff proves that the
defendants are interfering by blocking the
said road?
3. Whether the plaintiff is entitled for the relief
as prayed for?
4. What order of decree? "
4. The additional issue sought to be framed at the
request of application (petitioner herein) was as below:
"Whether the suit has been properly valued
for the purpose of court fee and
jurisdiction?"
5. A perusal of the copy of I.A.No.16 filed in the trial
Court, upon which, impugned order is passed, would go to
show that applicant except filing application, nowhere has
placed any material before the trial Court to show that the
market value of the suit schedule property was higher than
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what the plaintiff has valued in the plaint. In addition to that
the suit is one for the relief of permanent injunction, as such,
the alleged market value may not be of greater significance in
the matter.
Added to that it is taking the plaint averment trial Court
has proceeded with considering the valuation of the suit.
Under such circumstances, framing of the additional issue as
prayed for is not called for. In that regard, trial Court has
passed a detailed and reasoned order for rejecting I.A.No.16
filed by the defendant No.7 before it. In that view of the
matter, I do not find any ground in this writ petition, even to
order the notice upon the respondents. As such, the Writ
Petition stands dismissed as devoid of grounds for admission.
Registry to transmit a e-copy of this judgment to the
concerned trial Court immediately, for its information.
Sd/-
JUDGE
BVK
