Karnataka High Court

Smt. Seemawwa W/O Ningappa Chitagoud vs Ashok Claimimng To Be Adopted S/O ... on 5 June, 2024

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

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                                                                   NC: 2024:KHC-D:7473
                                                                        WP No. 102599 of 2023




                                     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                           DATED THIS THE 5TH DAY OF JUNE, 2024
                                                          BEFORE
                                       THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
                                        WRIT PETITION NO.102599 OF 2023 (GM-CPC)


                                BETWEEN:

                                1.   SMT. SEEMAWWA
                                     W/O NINGAPPA CHITAGOUD,
                                     AGE: 75 YEARS, OCC: AGRICULTURE,
                                     R/O: ALABAL, TQ: JAMKHANDI,
                                     DIST: BAGALKOT-587119.

                                2.   THE PRESIDENT,
                                     SHRI. SIDDARUD SEVA SAMITI ALABAL,
                                     REPRESENTED BY SHRI. S.I. PATIL,
                                     AGE: 59 YEARS, OCC: AGRICULTURE,
                                     R/O: ALABAL, TQ: JAMKHANDI,
                                     DIST: BAGALKOT-587119.
                                                                                ... PETITIONERS
                                (BY SRI GIRISH A. YADAWAD, ADVOCATE)

                                AND:

                                ASHOK CLAIMING TO BE ADOPTED
                                S/O NINGAPPA CHITAGOUD,
YASHAVANT
NARAYANKAR
                                AGE: 33 YEARS, OCC: AGRICULTURE,
Digitally signed by YASHAVANT
                                R/O. GOLABAVI ROAD, FORM HOUSE,
NARAYANKAR
Location: HIGH COURT OF
KARNATAKA DHARWAD
BENCH
Date: 2024.06.11 12:44:17
                                ALABAL, TQ: JAMKHANDI,
+0530
                                DIST: BAGALKOT-587119.
                                                                                ... RESPONDENT
                                (BY SRI SHIVARAJ S. BALLOLI, ADVOCATE)

                                     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
                                OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
                                THE NATURE OF CERTIORARI TO QUASH THE IMPUGNED ORDER
                                DATED 17.03.2023 PASSED BY THE ADDITIONAL SENIOR CIVIL
                                JUDGE, JAMKHANDI ON I.A.NO.5 IN O.S.NO.64/2021 VIDE
                                ANNEXURE-F, AND ALLOW THE SAID APPLICATION, IN THE
                                INTEREST OF JUSTICE AND EQUITY AND ETC.
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                                        NC: 2024:KHC-D:7473
                                          WP No. 102599 of 2023




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

                             ORDER

Heard learned counsel Sri Girish A. Yadawad for the

petitioners and learned counsel Sri Shivaraj S. Balloli

appearing for respondent.

2. This petition is filed by the petitioners, who are the

defendants before the Trial Court in O.S.No.64/2021,

wherein the respondent/plaintiff filed a suit for declaration,

partition and separate possession.

3. Parties to the proceedings shall be referred to as

per their status before the Trial Court for easy

understanding.

4. The plaintiff, who filed the suit for declaration,

partition and separate possession against the defendants and

the same was controverted by the defendants by filing the

written statement denying the entire plaint averments and

sought for dismissal of the suit. In the written statement

filed by the 1st defendant, it was categorically stated in para

No.1 that "the suit of the plaintiff is not maintainable in the

eye of law as the plaintiff is not having any subsisting right

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over the suit schedule properties". Same is also reiterated

subsequently in paragraph No.3 of the written statement and

other paragraphs of the written statement. Based on the

pleadings of both the plaintiff and the defendant defendants,

Trial Court framed the following issues for consideration.

"(1) Whether plaintiff proves that he is absolute owner of suit schedule properties? (2) Whether plaintiff is entitled for equitable partition by metes and bounds in suit land bearing Sy.No.32/1+2/1 to the extent of ½ share?

(3) Whether plaintiff is entitled for reliefs sought for?

(4) What order or decree?"

5. The Trial Court posted the matter to record the

evidence pursuant to the pleadings being completed. This

being the state of affairs, the Trial Court subsequently re-

casted the issue No.1 and framed additional issue Nos.1 and

2 which reads as under:

"RECASTED ISSUE

1. Whether the plaintiff proves that he is absolute owner in possession of suit land bearing

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Sy.No.29/2 measuring 6 acres 14 guntas of Alabal village?

ADDITIONAL ISSUE

1. Whether defendant No.1 proves that suit of the plaintiff is hit by under Order 2 Rule 2 of CPC?

2. Whether plaintiff has not valued the suit property and Court fee paid by the plaintiff is not proper?"

6. Thereafter, the defendants filed an application under

Order XIV, Rule-5 read with Section 151 of CPC on

14.12.2022, requesting the Court to frame additional issues

as follows :

"Whether the defendants prove that the suit is not maintainable as contended in para No.1 of the written statement?"

7. The said application was taken up for consideration.

However, it is seen that the plaintiff has not filed objections

to the said application filed by the defendants under Order-

XIV Rule-5 of CPC. The Trial Court, after hearing the

arguments of both the plaintiff and the defendants,

dismissed the application by holding that the defendants

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No.1 and 2 have not taken such contention, but they only

stated that the suit of the plaintiff is not maintainable and

has not taken any specific contention of bar under any law.

Therefore, the facts and circumstances of the case are

different from the present facts of the case and accordingly,

the Trial Court held that the contentions of the defendants

would be considered at the time of appreciation of evidence

and rejected the application as the defendants did not make

out a proper ground to allow the application.

8. It is this rejection of the application under Order

XIV Rule-5 of CPC seeking inclusion of additional issue with

regard to suit being not maintainable that the defendants are

before this Court.

9. I have heard the learned counsel for the petitioners

and learned counsel for the respondent. It is the vehement

contention of the learned counsel for defendants that the

Trial Court has totally misconceived and misconstrued itself

with regard to the provisions of Order-XIV Rule-5 of CPC

adding or inclusion of the issues which are left out but

pleaded in the pleadings. It is not in dispute that in the

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written statement filed by defendant No.1, it is very clearly

stated at paragraph No.1 that "the suit of the plaintiff is not

maintainable"? when such being the case and when such a

plea is taken by the defendants in their written statement, it

becomes the duty of the Trial Court to frame issues based on

the pleadings. It is relevant to extract the provisions of

Order XIV Rules 1, 2, 3, 4, 5 of CPC.

"Settlement of Issues and Determination of Suit on Issues of Law or on Issues agreed upon

1. Framing of issues.--(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.

(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

(3) Each material proposition affirmed by one party and denied by the other shall form the subject of distinct issue.

(4) Issues are of two kinds:

(a) issues of fact,

(b) issues of law.

(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements if any, and [after examination under rule 2 of Order X

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and after hearing the parties or their pleaders], ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

(6) Nothing is this rule requires the Court to frame and record issued where the defendant at the first hearing of the suit makes no defence.

[2. Court to pronounce judgment on all issues.--(1) Notwithstanding that a case may be disposed of on a 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 the 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.]

3. Materials from which issues may be framed.--The Court may frame the issues from all or any of the following materials:--

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(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties;

(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;

(c) the contents of documents produced by either party.

4. Court may examine witnesses or documents before framing issues.-- Where the Court is of opinion that the issues cannot be correctly framed without the examination of some person not before the Court or without the inspection of some document not, produced in the suit, [may adjourn the framing of issues to a day not later than seven days] and may (subject to any law for the time being in force) compel the attendance of any person or the production of any document by the person in whose possession or power it is by summons or other process.

[5. Power to amend and strike out issues.--(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.

(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.]"

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10. It is relevant here to mention Order-XIV Rule-1(2)

of CPC, which speaks about material propositions and those

propositions of law or fact which a plaintiff must allege in

order to show a right to sue or a defendant must allege in

order to constitute his defense.

11. In the present case, the defendant No.1 has very

clearly stated in paragraph No.1 of the written statement

that the suit is not maintainable as the plaintiff is not having

any subsisting right over the suit schedule properties. This

statement itself goes to the root of the problem and it

becomes a duty of the Trial Court to frame relevant and

proper issues to decide the suit both on the basis of facts

and law. When a specific plea has been taken by the

defendants, there is no other option for the Trial Court to

frame the relevant issues to avoid unnecessarily protracting

the proceedings or venturing into recording of evidence. In

case the Trial Court comes to a conclusion based on the

relevant issues framed on the question of law, if it is decided

as a preliminary issue, then the question of proceeding

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further to record evidence or proceeding with trial would not

arise at all.

12. In the present case, the defendant No.1 has

categorically taken such a plea that suit is not maintainable

for the plaintiff does not have a subsisting right to file the

same. The issues relevant were not framed initially due to

which the defendants filed application under Order XIV Rule

5 of CPC for inclusion of additional issue which is material

and legal issue to be framed and decide in accordance with

law. It is this application which is dismissed by the Trial

Court that is questioned by the petitioner/defendants, it is

sufficient and relevant for the Court to take into

consideration the material placed on record either by way of

pleadings or documents with regard to suit not being

maintainable for the reason stated in the written statement

by the defendants and once such a pleading is made, the

Trial Court is duty bound to frame the relevant issue and

decide the matter whether as preliminary issue or otherwise.

13. In the first instance, the Trial Court having not

made the relevant issue on the application filed by the

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defendants, the Trial Court ought to have framed the

additional issue with regard to suit being not maintainable

and decide the same in accordance with law. But whereas,

the Trial Court has dismissed the application filed by the

defendants on the sole ground that the defendants have not

taken a specific contention with regard to bar under any law

and that the contentions of the defendants would be

appreciated at the time of recording of evidence which

according to the defendants is erroneous, arbitrary and

illegal and the same deserves to be set aside.

14. Per contra, the learned counsel representing the

respondent/plaintiff sustains the order of the Trial Court by

contending that the additional issue which is sought to be

framed by the Trial Court could be decided at the time of

recording of evidence. Therefore, there is no illegality or

perversity in the order passed by the Trial Court. Hence, he

seeks to dismiss the petition.

15. I have given thoughtful consideration to the

submissions put forth by the learned counsel for the

petitioners and the respondent and on careful perusal of the

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provisions of Order XIV Rule 1 to 5 and the pleadings made

by the defendant No.1 in his written statement, it is

apparently clear that there is a ground raised that the suit is

not maintainable. It is not necessary in every case for the

defendant to specifically say that there is a bar under which

law. The same could be argued at the time of addressing the

application by the parties which requires to be considered by

the Trial Court instead of doing the same, the Trial Court has

rejected the application, which in my humble opinion is not

correct proposition of law as Order XIV of CPC contemplates

framing of relevant material issues on the basis of materials

and propositions put forth by the parties, both plaintiff and

the defendant, in their pleadings and if the same is not

framed, Order XIV of CPC contemplates filing of an

application for inclusion or addition of additional issues which

has been initiated by the defendants by filing the necessary

application for inclusion of an additional issue with regard to

maintainability of the suit.

16. Learned counsel for the petitioner relies on the

Judgment of the Hon'ble High Court of Andhra Pradesh in the

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case of M/s. Unitech Industrial Corporation and Another

v. M/s.Arvind Engineering Co., reported in AIR 2001

ANDHRA PRADESH 177 on the question of Order XIV Rule 5

of CPC, framing of additional issue. To canvass argument

with regard to when a ground has been taken on the

maintainability of the suit, it is the duty of the Trial Court to

consider the issue at the first instance and decide the same

and thereafter proceed further.

17. Learned counsel has also relied on the Judgment in

the case of Dina Ji and Others v. Daddi and Others

reported in AIR 1990 SC 1153 passed by the Hon'ble Apex

Court to rely on the proviso (C) of Section 12 of the Hindu

Adoptions and Maintenance Act, 1956. Under the

circumstances, this Court is of the opinion that the Trial

Court has committed an error in not appreciating the

application filed by the defendants for inclusion or addition of

additional issue as sought in the interlocutory application

filed under Order XIV Rule-5 of CPC. It is reiterated once

again that once a plea is taken with regard to suit is not

being maintainable, the same would have to be framed as an

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issue with regard to maintainability of the suit and thereafter

decide the same whether it has to be treated as a

preliminary issue or otherwise. Accordingly I pass the

following:

ORDER

(i) The petition is allowed.

(ii) The impugned order dated 17.03.2023

passed by the Additional Senior Civil Judge,

Jamakhandi on I.A.No.V In O.S.No.64/2021

vide Annexure-F is hereby set aside.

(iii) The application I.A.No.V filed in

OS.No.64/2021 is allowed. The Trial Court is

directed to frame additional issues as to

"whether the suit of the plaintiff is

maintainable as stated in paragraph No.1 of

the written statement?"