[Cites 3, Cited by 0]
Karnataka High Court
Raghavendra vs T D Srinivas on 3 December, 2025
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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WP No. 4559 of 2020
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
WRIT PETITION NO. 4559 OF 2020 (GM-CPC)
BETWEEN:
1. RAGHAVENDRA
S/O T.D. YOGISH
AGED ABOUT 36 YEARS.
2. RAVIKARAN
S/O T.D. YOGISH
AGED ABOUT 32 YEARS.
BOTH ARE RESIDING AT
KAVADAGI STREET
TARIKERI TOWN, TQ TARIKERE
DIST CHIKMAGALUR
PINCODE - 577 228.
...PETITIONERS
(BY SRI DESAI SHARANABASAPPA VIRANNA, ADV.)
AND:
Digitally signed T.D. SRINIVAS
by NANDINI M S/O LATE T.V. DASAPPA
S SINCE DECEASED BY LRS.
Location: HIGH
COURT OF 1. T.D. JAYARAM
KARNATAKA
S/O LATE DASAPPA
AGED ABOUT 70 YEARS
RESIDING AT NO 10
15TH CROSS, 20TH MAIN
J.P. NAGAR, BENGALURU - 560 078.
SMT. SHARADAMMA
W/O S.R. CHANDRASHEKAR
DIED ON 05-05-2012
DEATH CERTIFICATE PRODUCED
HEREIN, NOTE IN LOWER COURT
NO LRS ON RECORD & NOT
-2-
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WP No. 4559 of 2020
HC-KAR
DELETED IN CAUSE TITLE
HENCE NOTICE NOT REQUIRED
AND IT MAY BE DISPENSED.
2. SMT. KAVERI
W/O LINGADEVARU
AGED ABOUT 66 YEARS
RESIDING AT NO.72
14TH MAIN, 2ND PHASE
WEST OF CHORD ROAD
BENGALURU - 560 080.
...RESPONDENTS
(BY SRI H.T. NATARAJ, ADV., FOR R-1;
R-2 SERVED & UNREPRESENTED)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 09.12.2019 (ANNX-J) PASSED BY THE SENIOR CIVIL JUDGE
AND PRL. JMFC, TARIKERE ON I.A.NO.15 FILED IN RA NO.71/2018.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
1. Defendant Nos.1 and 2 have filed this writ petition under
Article 227 of the Constitution of India with a prayer to set-
aside the order dated 09.12.2019 passed by the Court of Senior
Civil and Principal JMFC, Tarikere, in RA No.71/2018 allowing IA
No.15 which was filed in OS No.206/2007.
2. Heard the learned counsel for the parties.
3. Suit in OS No.206/2007 was filed before the jurisdictional
Civil Court at Tarikere by respondents herein and in the said
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suit, IA No.15 was filed by them under Order VI Rule 17 of CPC
with a prayer to amend the plaint. The said application was
dismissed by the Trial Court by order dated 10.07.2017. The
same was assailed by the plaintiffs before this Court in WP
No.35986/2017. The said writ petition was disposed off
reserving liberty to the petitioners therein to challenge the
order dated 10.07.2017 passed on IA No.15 as provided under
Section 105 of CPC before the Appellate Court in the event of
he filing an appeal against the decree to be passed in the suit.
After disposal of WP No.35986/2017, the Trial Court had
dismissed OS No.206/2007 and thereafter, RA No.71/2018 was
filed by the plaintiff challenging the judgment and decree
passed in OS No.206/2007. In the said appeal, the First
Appellate Court has passed the order impugned allowing IA
No.15 which was filed in OS No.206/2007. Being aggrieved by
the same, defendants are before this Court.
4. Section 105 of CPC reads as follows:-
"105. Other orders.-(1) Save as otherwise
expressly provided, no appeal shall lie from any
order made by a Court in the exercise of its original
or appellate jurisdiction; but where a decree is
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appealed from, any error, defect or irregularity in
any order, affecting the decision of the case, may
be set forth as a ground of objection in the
memorandum of appeal.
(2) Notwithstanding anything contained in sub-
section (1), where any party aggrieved by an order
of remand from which an appeal lies does not
appeal therefrom, he shall thereafter be precluded
from disputing its correctness."
5. The aforesaid provision of law provides that in an appeal
which is filed challenging any decree, orders passed on any
interlocutory application, during the pendecny of the suit, which
affect the decision of the case, may be set forth as a ground of
objection in the memorandum of appeal. Considering this
provision of law, this Court while disposing off WP
No.35986/2017 had reserved liberty to the petitioners/plaintiff
No.1 to raise the grounds as provided under Section 105 of CPC
in the proposed appeal in the event, a decree is passed against
him. The Appellate Court has failed to appreciate this aspect of
the matter and has erred in passing the order impugned by
allowing IA No.15 which was filed in OS No.206/2007. IA No.15
was dismissed by the Trial Court by order dated 10.07.2017
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and the said order was unsuccessfully challenged by plaintiff
No.1 in WP No.35986/2017. The First Appellate Court has
misunderstood and misread Section 105 of CPC and has erred
in passing the order impugned.
6. At this juncture, learned counsel for respondent No.1
submits that liberty may be reserved to the respondents to file
a fresh application under Order VI Rule 17 of CPC before the
First Appellate Court.
7. The said submission of learned counsel for respondent
No.1 is placed on record.
8. The writ petition is allowed. The impugned order dated
09.12.2019 passed by the Court of Senior Civil and Principal
JMFC, Tarikere, in RA No.71/2018 allowing IA No.15 which was
filed in OS No.206/2007, is set-aside, with liberty as prayed
for.
Sd/-
(S VISHWAJITH SHETTY)
JUDGE
DN
List No.: 1 Sl No.: 29
