Karnataka High Court
M/S. Srinivasa Trust vs D. A. Thejeshwari on 8 July, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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Reserved on : 18.06.2025
Pronounced on : 08.07.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.11450 OF 2025 (GM - CPC)
BETWEEN:
1. M/S. SRINIVASA TRUST
A TRUST REGISTERED UNDER
THE INDIAN TRUST ACT, 1881
HAVING ITS PRINCIPAL OFFICE AT
7/21, 1ST CROSS, 9TH MAIN
RMV EXTENSION, BENGALURU - 560 080
REPRESENTED BY ITS
TRUSTEE AND AUTHORISED SIGNATORY
D.A.SRINIVAS.
2. KALPAJA DALAVOI
AGED ABOUT 57 YEARS
TRUSTEE OF M/S. SRINIVASA TRUST
AT NO.87, SAI KESHAV
OPPOSITE SAI GARDENS, SEEGAHALLI
BENGALURU - 560 067.
... PETITIONERS
(BY SRI DHYAN CHINNAPPA, SENIOR ADVOCATE A/W.,
SRI ROHAN HOSMATH, ADVOCATE)
2
AND:
1. D.A.THEJESHWARI
AGED ABOUT 57 YEARS
W/O K.M.SRINIVASA MURTHY
RESIDING AT NO. 5/25, 10TH MAIN
13TH CROSS, JAYANAGARA, 1ST BLOCK
BENGALURU - 560 066.
2. EKTA KUKREJA
DIRECTOR OF ANUSHKA
CONSTRUCTIONS PVT., LTD.,
D/O OF LATE NANDA KUMAR BASHOMAL MENDA
AGED ABOUT 48 YEARS
RESIDING AT FLAT NO.21B
KINGFISHER TOWERS
KASTURBA ROAD CROSS
BENGALURU - 560 001.
3. ANUSHKA CONSTRUCTIONS PVT., LTD.,
COMPANY INCORPORATED UNDER
COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
NO.100/1, CITY CENTRE OPP. TO TOWN HALL
J.C.ROAD BENGALURU - 560 002
REPRESENTED BY ITS DIRECTOR
AVNASH AMARALAL.
... RESPONDENTS
(BY SRI G.L.VISHWANATH, SENIOR ADVOCATE FOR
SMT. MANASA B.RAO, ADVOCATE FOR C/R2 AND R3;
R1 - SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DTD. 07.04.2025 (ANNX-A) IN IA NO. 8 IN O.S NO. 1453/2024
PASSED BY THE COURT OF I ADDITIONAL CITY CIVIL AND
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SESSIONS JUDGE BENGALURU (CCH NO. 2) AND PASS SUCH
OTHER ORDER AS MAY BE NECESSARY.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 18.06.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioners/plaintiffs 1 and 2 are before this Court calling
in question an order dated 07-04-2025 passed by the I Additional
City Civil and Sessions Judge, Bengaluru in O.S.No.1453 of 2024
rejecting an application filed by the plaintiffs under Order 14 Rule
5(1) & (2) of the CPC seeking recast of issues framed on
20-11-2024, by the issues proposed in the application as additional
issues and deleting issues 4 and 5 originally framed.
2. Facts, in brief, germane are as follows: -
The 1st petitioner-M/s Srinivasa Trust ('the Trust' for short)
which is a Trust registered under the provisions of the Indian Trusts
Act, 1882 is said to be running multiple educational institutions
including Vydehi Institute of Medical Sciences and Research Centre.
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The issue revolves round the suit schedule property. On
30-05-2000 the suit schedule property is purchased by the 1st
respondent in terms of a registered sale deed. The 1st respondent is
said to have entered into an agreement of sale on 13-03-2023 with
the Trust in respect of the suit schedule property for a total
consideration of ₹80/- crores. Pursuant to the sale agreement, the
2nd petitioner being the Managing Trustee of the Trust, authorizes a
sum of ₹70/- crores to be transferred through RTGS in favour of the
1st respondent as advance amount and what is said to have been
remaining is only ₹10/- crores, which was to be paid at the time of
execution and registration of the sale deed.
2.1. The plaintiffs were thereafter intimated or came to their
knowledge that the 1st respondent is likely to alienate the property
in favour of some third parties and, therefore, file suit in
O.S.No.1453 of 2024 for specific performance of sale agreement
dated 13-03-2023. The concerned Court grants an ex-parte
injunction restraining the 1st respondent from alienating the suit
schedule property. The plaintiffs also communicate to the District
Registrar and all the jurisdictional Sub-Registrars regarding the ex-
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parte injunction granted on 26-02-2024. During the subsistence of
these proceedings, on 13-03-2024, the 2nd respondent/2nd
defendant is said to have purchased the suit schedule property in
terms of the sale deed dated 13-03-2024. The allegation now is,
that the 1st respondent has sold the property during the subsistence
of the ex-parte injunction and, therefore, it is in violation of ex-
parte injunction.
2.2. During the subsistence of the aforesaid suit in
O.S.No.1453 of 2024, the 2nd respondent institutes O.S.No.2897 of
2024 for bare injunction to restrain the plaintiffs from interfering
with the possession of the 2nd defendant/2nd respondent. The BBMP
is said to have issued khatha on the strength of the sale deed
executed in favour of the 2nd defendant. On 20-07-2024, written
statement is filed by the 1st respondent in O.S.No.1453 of 2024 and
on subsequent dates, written statement is filed by other
defendants. In the suit preferred by the 2nd defendant in
O.S.No.2897 of 2024, the Court grants injunction against the
petitioners/plaintiffs concerning the suit schedule property on
01-10-2024. The plaintiffs then prefer M.F.A.No.6603 of 2024
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calling in question the order of temporary injunction granted in the
said original suit. The same is allowed in part, by modifying the
order of the trial Court granting injunction, to that of parties to
maintain status quo till the disposal of the suit. After the said order,
issues are framed by the concerned Court on 20-11-2024. On
framing of issues, the plaintiffs filed interlocutory application in
O.S.No.1453 of 2024 under Order VI Rule 17 CPC seeking
amendment of the plaint which is allowed by the Court. The
amended plaint is also filed by the plaintiffs and the respondents
have filed additional statement of objections in the light of the
amendment. There is no issue in the lis up to this stage. On
14-02-2025, the plaintiffs file I.A.No.8 under Order XIV Rule 5(1)
and (2) of the CPC seeking recast of the issues that were framed on
20-11-2024. The said application comes to be rejected, the
rejection of which has driven the plaintiffs to this Court in the
subject petition.
3. Heard Sri Dhyan Chinnappa, learned senior counsel
appearing for the petitioners, Sri G.L.Vishwanath, learned senior
counsel appearing for respondents 2 and 3.
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4. The learned senior counsel appearing for the petitioners
would vehemently contend that the petitioners being the plaintiffs
are entitled to seek recast of the issues, as appropriate issues will
lead to appropriate trial. What led to framing of issues on
20-11-2024 was I.A.No.5 which was filed by the defendants and the
issues were framed on the basis of the written statement; while the
same kind of application is filed by the petitioners, it is turned down
on the score that for a suit of specific performance, possession is
immaterial. The learned senior counsel would submit that the
concerned Court has failed to frame an issue whether the
petitioners/plaintiffs prove the effect of novation of the contract, on
a complaint for the simple reason that the plaintiffs had entered
into an agreement with the 1st defendant on 13-03-2023 and prior
to that, the 3rd respondent is said to have entered into an
agreement of sale on 07-11-2022 and a supplementary agreement
of sale is executed by the 1st respondent on 13-03-2024 in favour
of the 2nd defendant. All these factors had to be projected by way
of an appropriate issue. He would submit that the concerned Court
has failed to consider the importance of framing of appropriate
issue and has erroneously rejected the application and wanted to
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take up the matter on a day-to-day basis. He would seek that the
order be quashed and recast of the issues be directed.
5. Per contra, learned senior counsel representing
respondents 2 and 3 would vehemently refute the submissions by
contending that the petitioners have filed the suit for specific
performance and permanent injunction against the 1st defendant.
The 1st defendant did not disclose the said suit or interim order
passed therein and executes a sale deed after the injunction on
13-03-2024 in favour of respondents 2 and 3. Accordingly,
respondents 2 and 3 were put in possession of the suit schedule
property. Respondents 2 and 3 were later impleaded as additional
defendants on consent of the plaintiffs. BBMP has issued khatha in
favour of the 2nd respondent and the 2nd respondent is in lawful
possession of the property. I.A.No.8 filed by the plaintiffs was
allowed in part - one additional issue was framed and the other was
denied. The other, concerning the issue of unregistered sale
agreement dated 13-03-2023 where the plaintiffs allege delivery of
possession.
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5.1. The learned senior counsel would submit that delivery of
possession would not mean being in possession. Issue No.5 is
appropriately framed, whether respondent No.1 has put respondent
Nos. 2 and 3 in possession of the suit schedule property and
whether they are bona fide purchasers. When there is already an
issue with regard to whether defendants 2 and 3 have been put in
possession by the 1st defendant, there need not be an issue as to
whether the plaintiffs are in possession or otherwise. It is rightly
dismissed by the concerned Court is his emphatic submission.
6. I have given my anxious consideration to the submissions
made by the respective learned senior counsel and have perused
the material on record. In furtherance whereof, the only issue that
falls for consideration is:
"Whether the application in I.A.No.8 was necessary to
be allowed or otherwise?"
7. The application, in the suit, is preferred under Order XIV
Rule 5 of the CPC. Order XIV Rule 5 reads as follows:
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"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."
Before embarking upon consideration of the purport of Order XIV
Rule 5 CPC, I deem it appropriate to notice the interpretation of
Order XIV Rule 5 CPC by the coordinate Bench of this Court and
other High Courts.
8. A learned Single Judge of this Court in the case of
P.S.SHIVAKUMAR v. P.H.SUBBARAYAPPA1, has held as follows:
".... .... ....
14. Under Order 14 Rule 5 CPC the Court has power
to amend the issues framed including framing of
additional issue at any time before passing of a decree on
such terms as it thinks fit, which in its opinion may be
necessary for determining the matters in controversy
between the parties. A bare reading of Order 14 Rule 1(1)
CPC would indicate that when a material proposition of
fact or law is affirmed by one party and denied by the
other, then, an issue would arise for being framed.
Whoever desires any Court to give a judgment as to any legal
right dependent on the existence of facts which he asserts, must
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2017 SCC OnLine Kar 2263
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prove that those facts exist, eiincumbitprobatio qui dicit, non qui
negate - The proof lies upon him who affirms, not upon him
would denies. In other words, burden will lie on the party who
asserts the fact to be taken note of by the Court in his favour
and as such, burden shifts on the person so asserting, cum per
rerum naturam factum negantisprobationulla sit - Since by the
nature of things he who denies a fact cannot produce any proof.
In other words, a negative is usually incapable of proof."
(Emphasis supplied)
Though not in elaboration, the learned single Judge holds that
under Order XIV Rule 5 CPC, the Court has the power to amend the
issues framed including framing of additional issues, at any time
before passing of the decree, on such terms as it thinks fit for
determining the controversy between the parties. A bare reading of
Order XIV Rule 5(1) & (2) CPC would indicate that when material
proposition of fact or law is affirmed by one party and denied by the
other, that would become an issue that is to be framed.
9. A coordinate Bench in the case of
D.R.NARASIMHAMURTHY v. SRI SRINIVASA2, holds as follows:
".... .... ....
POINT NO.1:
2
Writ Petition No.12102 of 2015 decided on 27-01-2020
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12. Order XIV of CPC deals with framing of issues.
Perusal of the said Order XIV Rule 1 of CPC indicates that
whenever there is a proposition of fact or law which is
affirmed or denied by the other, an issue has to be
framed by the Court and all issues raised by the Court are
to be answered in the Judgment to be passed, in terms of
Order XIV Rule 5. The Court may before passing the
decree, amend the issues or frame additional issues on
such terms as it thinks fit.
13. In the present situation, it is an admitted fact that 1st
respondent-plaintiff had filed an application for amendment of
the plaint and the relief sought for. It is also an admitted fact
that it is in respect of this amendment that the petitioner filed
his additional written statement. It is not that the petitioner/1st
defendant has sought to amend his written statement by filing
an application under Order VI Rule 17 CPC, the additional
written statement was filed on account of the amendment
carried out by the plaintiff. Therefore, the contents of the
additional written statement cannot be controlled or restricted.
At the stage when issues are to be framed, order XIV
does not contemplate any enquiry into the veracity or
genuineness of the pleadings. What is contemplated
under order XIV is that any proposition of fact or law
which is essential for a decision to be rendered in the
matter would have to form a basis for framing of issues
by the Court. Thus, whenever there is an additional
pleadings, be it an amended plaint or an additional
written statement, if and so, those pleadings raise any
material proposition of fact or law, it would be the duty of
the Court to frame issues arising out of such new
material proposition of fact or law. Needless to say that
in the event the amendment or additional written
statement does not raise any new material proposition of
fact or law, there would be no need to frame any
additional issues.
... ... ...
POINT NO.2:
15. Learned counsel for 1st respondent has contended
that since pleadings raised in the additional written statement
where mutually destructive or dishonest, vis à-vis the pleadings
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raised in the written statement filed earlier in O.S.No.272/2007,
the trial Court was right in going through the merits of the said
pleadings made in the additional written statement and having
held it to be contradictory and destructive, the trial Court was
right in refusing the oral request of the petitioner to frame
additional issues. This contention of the learned counsel for 1st
respondent/plaintiff cannot be accepted for the reason that at
the stage of framing of issues, the Court is not required to
examine the merits or demerits, genuineness or otherwise of
the pleadings filed before the Court. That would arise at the
stage when the Court is examining the pleadings and evidence
on record and coming to a conclusion thereon at the ultimate
stage of Judgment being rendered.
16. If the contention of 1st respondent/plaintiff is
accepted, the same would result in a disastrous consequence of
a finding being given by the trial Court at the stage of framing
of issues itself. The trial Court on examination of pleadings
on record, if it comes to a conclusion that there are
material proposition of fact or law, affirmed or denied by
either of the parties, the trial Court is required to proceed
with framing of issues.
17. In view of the above, point No.2 is answered by
holding that the trial Court is not required to dwell on
merits or demerits of the pleadings raised, genuineness
or falsehood of the pleadings raised, whether the
pleadings raised in an amended written statement is
contradictory to the earlier written statement filed, etc.
The trial Court is only to frame issues on the basis of the
material proposition of fact or law raised in the amended
or additional written statement which is filed."
(Emphasis supplied)
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10. The High Court of Delhi in the case of ABBOTT
HEALTHCARE PRIVATE LIMITED v. RAJ KUMAR PRASAD3, has
held as follows:
".... .... ....
12. The counsel for the plaintiff, in rejoinder, refers to S.
Surjit Singh Sahni v. Brij Mohan Kaur 65 (1997) DLT 670 and on
order dated 30th April, 2013 in CS(OS) No. 1457/2009
titled Ranbaxy Laboratories Ltd. v. Intas Pharmaceuticals
Ltd. and against which no appeal is stated to have been
preferred, holding that framing of issues is the duty of the
Court and rejection of an earlier prayer does not debar a
fresh prayer for framing an issue if it arises from the
pleadings and ought to have been framed and has
mistakenly not been framed. It is argued that the Court, at
the time of framing of issues on 21st March, 2016, has not
applied its mind and not refused to frame the issue about
invalidity. It is thus contended that the plaintiff can apply for
framing of additional issue.
13. I tend to agree with the counsel for plaintiff. The
Code of Civil Procedure, 1908 (CPC), vide Order XIV Rule
5 empowers the Court to, at any time before passing a
decree, amend the issues or frame additional issues and
provides that all such amendments or additional issues as
may be necessary for determining the maters in
controversy between the parties shall be so made or
framed. Thus, merely because at the time of framing of
issues, an issue though arising from pleadings, has not
been pressed and/or framed would not stop a
subsequent application. The position may be different
where an issue is pressed and not framed by a speaking
order. In such case, the bar of res judicata, also applicable at
successive stages of same proceeding, may come in way of an
application under Order XIV Rule 5 CPC. However, in the
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present case, a perusal of order dated 21st March, 2016, when
issues were framed, does not show any such thing."
(Emphasis supplied)
11. The High Court of Delhi, in its later judgment in SANA
HERBALS PRIVATE LIMITED v. MOHSIN DEHLVI4, has held as
follows:
".... .... ....
13. It is the settled position of law that it is the obligation
of the Court to frame issues. In this regard reference may be
made to paragraph 7 of the S. Surjit Singh Sahni (supra):
"7. A perusal of the several provisions
contained in Order 14 of the CPC would be apposite.
An issue arises when a material proposition of fact or
law is affirmed by one party and denied by the other.
Every such proposition shall form the subject of a
distinct issue. Primarily it is the obligation of the
Court to frame the issues. Failure on the part of the
Court may be remedied by either party inviting
attention of the Court to the need of framing such an
issue either by participating in the process of
settlement of issues or by moving an application
under Order 14 Rule 5 of the CPC. It is obligatory on
the part of the Court to frame an issue once it is
satisfied that an issue which should have been
framed was not framed. If the trial court fails in
framing an issue or fails to remedy its earlier failure
then even an appellate court is vested with power of
framing an issue under Rule 25 of Order 41 of
the CPC."
[emphasis supplied]
14. In light of the dicta above, even if the counsel for
the defendant did not press for framing of the issues
sought to be framed now, it would not mean that the
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Court cannot, at a subsequent stage, frame such issues if
they emerge from the pleadings in the suit. The language
of Order XIV Rule 5 of the CPC is very wide and
empowers the Court to amend the issues so framed or
frame additional issues at any time before passing of the
final decree."
(Emphasis supplied)
12. On a coalesce of the judgments rendered by this Court
and that of the High Court of Delhi what would unmistakably
emerge is, the power of the Court to frame issues, recast issues
and frame additional issues at any stage. Framing of issues is the
duty of the Court and rejection of an earlier prayer for framing an
issue does not debar another application based upon the pleadings
and the defence. The language of Order XIV Rule 5 CPC is wide and
empowers the Court to amend the issues so framed or frame
additional issues at any time before passing of the decree. With this
being the interpretation of Order XIV Rule 5 CPC by Courts, the
order of the concerned Court rejecting the application becomes
necessary to be noticed. The order records the earlier issues and
the issues that are sought to be recast. The order reads as follows:
".... .... ....
7. POINT No.1:- Plaintiffs have filed this suit for specific
performance of agreement of sale dated 13.03.2023 allegedly
executed by defendant No.1 in favour of the plaintiffs. It is the
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case of the defendants that, the defendant No.1 had executed
the registered agreement of sale dated 07.11.2022 in respect of
the suit schedule property. Thereafter, supplementary
registered agreement of sale came to be executed on
16.02.2024 by enhancing the consideration amount in novation
of the earlier registered agreement of sale dated 07.11.2022.
Based on which, on 13.03.2024, the defendant No.1 has
executed the sale deed in favour of the defendant No.2 in
respect of the suit schedule property, for which, the defendant
No.3 is a consenting party. Based on the pleadings, this Court
has framed the following issues on 20.11.2024:
1 Whether the plaintiffs prove that, the defendant
No.1 entered into agreement of sale dated
13.03.2023 agreeing to sell the suit schedule
properties to plaintiff No.1 Trust for total sale
consideration of Rs.80 Crores and received Rs.70
Crores as advance amount?
2 Whether the plaintiffs prove that, they are ready
and willing to perform their part of contract by
paying balance sale consideration of Rs.10 Crores?
3 Whether the defendant No.1 proves that, she has
availed loan of Rs.70 Crores from the plaintiffs and
for the security of the same, she has executed
agreement of sale dated 13.03.2023?
4 Whether the defendant No.1 further proves that,
she had executed registered agreement of sale
dated 07.11.2022 in respect of the suit schedule
properties in favour of Anushka Constructions /
defendant No.3 and in terms of said agreement of
sale, on 13.03.2024, she has executed registered
sale deed in favour of defendant No.2 on behalf of
defendant No.3?
5 Whether the defendant Nos.2 & 3 prove that, in
view of registered agreement of sale dated
07.11.2022 and supplementary agreement dated
16.02.2024 in respect of the suit schedule
properties, the defendant No.1 has executed the
registered sale deed dated 13.03.2024 in their
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favour and put them in possession of the same and
they are bonafide purchasers for valuable
consideration?
6 Whether the plaintiffs are entitled for the relief of
permanent injunction as sought for?
7 Whether the plaintiffs are entitled for the reliefs as
claimed?
8 What Decree or Order?
8. In the IA, the plaintiffs have prayed to frame
additional issue No.1 as to whether the plaintiffs prove their
possession over the suit schedule property. On perusal of the
agreement of sale dated 13.03.2023, based on which, this suit
is filed by the plaintiffs, there are no averments regarding
handing over of the suit schedule property to the plaintiff.
Further, in a suit for specific performance, question of
possession of the parties is immaterial. If the plaintiffs succeed
in the suit, the possession will follow the title, hence, this issue
do not arise.
9. Additional issue No.2 sought to be framed is whether
the plaintiffs prove that, the defendant No.1 has entered into a
supplementary agreement dated 16.02.2024 in novation of the
agreement of sale dated 07.11.2022. The burden is on the
defendants to prove these things that, whether the defendant
No.1 entered into supplementary agreement dated 16.02.2024
in novation of the agreement of sale dated 07.11.2022 and not
the plaintiffs. Further, in issue No.5, it is already covered,
hence, again framing of additional issue No.2 casting burden on
the plaintiffs regarding proving the case of the defendants do
not arise.
10. Additional issue No.3 sought to be proved is that,
whether the plaintiffs are the prior agreement holders. Issue
Nos.1 and 4 which are already framed on 20.11.2024 are
covered with this aspect as to which agreement is prior
agreement, hence, in view of the issue Nos.1 to 5, which are
already framed, this additional issue No.3 do not arise.
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11. Additional issue No.4 sought to be framed by the
plaintiff is regarding registered sale deed dated 13.03.2024
executed by the defendant No.1 in favour of defendant Nos.2
and 3 as null and void in view of violation of ex-parte injunction
order dated 26.02.2024. It is the specific case of the plaintiffs
that, in view of the ex-parte injunction order passed by this
Court on 26.02.2024, the defendant No.1 knowing fully well
about the ex-parte injunction order has executed the sale deed
in favour of the defendant No.2, hence, the said sale deed is null
and void. Along with this IA, the plaintiffs have filed IA No.9 for
amendment of pleadings to that effect. Hence, it is the specific
case of the plaintiffs that, the execution of registered sale deed
dated 13.03.2024, is in violation of the ex-parte injunction order
dated 26.02.2024. Hence, in the considered opinion of this
Court, this additional No.4 sought to be framed is necessary for
proper adjudication of the matter.
12. In the application, the plaintiffs have prayed to delete
issue No.4. Order 14 Rule 5(1) & (2) of CPC reads as under:
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.
13. Based on the averments of the written statement of
defendant Nos.1 to 3, issue Nos.4 and 5 are framed. It is the
specific case of the defendant Nos.1 to 3 that, in view of the
registered agreement of sale dated 07.11.2022 and
supplementary agreement dated 16.02.2024, defendant No.1
being the absolute owner of the suit schedule property has
executed the registered sale deed on 13.03.2024 in favour of
the defendant No.2, for which, defendant No.3 is a confirming
party. Based on the material propositions of defendant Nos.1 to
3, these issue Nos.4 & 5 are framed. Hence, issue Nos.4 & 5
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cannot be deleted. Under the above circumstances, I answer
point No.1 is partly in the affirmative.
14. POINT No.2:- In view of the aforesaid discussions, I
proceed to pass the following:
ORDER
I.A.No.8 filed by the plaintiffs under 14 Rule 5(1) &
(2) of CPC, is partly allowed.
Addl. Issue No.1 is framed, whether the plaintiffs
prove that, the registered sale deed dated 13.03.2024
executed by the defendant No.1 in favour of defendant
Nos.2 and 3 is null and void for violation of ex-parte
injunction order dated 26.02.2024?"
The concerned Court holds that the application seeking to delete
issues 4 and 5 is unnecessary. The issue whether, defendants 2
and 3 would prove that in terms of a registered agreement prior to
the agreement under which the petitioners are in possession of,
defendants 2 and 3 were put in possession, is already in place. The
burden to prove possession is thus on the defendants. Therefore,
any issue with regard to the petitioners being in possession or
novation of contract is unnecessary to be framed. Therefore, the
Court allows the application in part, accepts one issue to be recast
and declines the other. The recasting of issues sought is as follows:
1. "Whether the Plaintiffs prove that they are in physical
possession of the schedule property?
2. Whether Plaintiffs prove that Defendant No.1 has
entered into a supplementary agreement dated
16.02.2024 in novation of the agreement of sale dated
07.11.2022?
3. Whether plaintiffs prove that they are the prior
agreement holders with respect to the suit schedule
property?
4. Whether plaintiffs prove that the registered sale deed
dated 13.03.2024 executed by defendant No.1 in
favour of defendant No.2 and 3 is null and void, for
violation of ex-parte injunction order dated
26.02.2024?"
The order of the concerned Court is, on the face of it, erroneous.
The plaintiffs have amended the plaint pursuant to an order passed
by the Court under Order VI Rule 17 CPC. Issues were framed on
20-11-2024, not on the basis of the plaint but on the basis of the
written statement. It is an admitted fact that most of the issues
deal with whether the defendants prove everything. Therefore, it
was necessary for the concerned Court to have included the issue
as sought by the plaintiffs, as the plaintiffs are also entitled to
prove that they were put in possession of the property on
13-03-2023 when the 1st defendant enters into an agreement with
the plaintiffs, at which point in time the 1st defendant receives
consideration of ₹70/- crores and what remained was only payment
of ₹10/- crores.
13. The other inclusion that is sought is, whether there has
been novation of agreement. The novation of the agreement the
plaintiffs project is, defendant No.1 entering into an agreement of
sale with the plaintiffs and again entering into a sale deed with
defendants 2 and 3, on the strength of an earlier agreement on
07-11-2022. In the light of maze of these disputed questions of
fact, the appropriate issue would guide the result. In that light the
application deserves to be allowed.
14. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed in part.
(ii) The order impugned dated 07-04-2025 is modified and
the application filed by the petitioners/plaintiffs in
I.A.No.8 seeking recast or drawing up of additional
issues, which is allowed in part, is further allowed. The
concerned court shall recast the issues including the
following issues 1 and 3:
1. Whether the Plaintiffs prove that they are in
physical possession of the schedule property?
3. Whether plaintiffs prove that they are the prior
agreement holders with respect to the suit
schedule property?
(iii) The concerned Court is directed to regulate its
procedure in terms of this order, before proceeding
further.
Pending applications, if any, also stand disposed.
Sd/-
(M.NAGAPRASANNA)
JUDGE
Bkp
CT:SS
