[Cites 7, Cited by 0]
Karnataka High Court
Smt. Mallika Hegade vs Smt. Jalaja Shedthi @ Jalaja Shetty on 27 January, 2026
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 812 of 2026
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 812 OF 2026 (GM-CPC)
BETWEEN:
1. SMT. MALLIKA HEGADE
W/O LATE NARAYAN H. SHETTY,
AGED ABOUT 56 YEARS.
2. MR.NISHITH N SHETTY
S/O LATE NARAYAN H SHETTY
AGED ABOUT 32 YEARS
BOTH PETITIONER NO. 1 AND 2
RESIDING AT NO.303, 3RD CROSS
INDRANI APARTMENT, DESHPANDE NAGAR
HUBLI, TRAFFIC ISLAND
HUBBALLI - 580 029.
Digitally signed ...PETITIONERS
by
SHARADAVANI
B (BY SRI. VINAYAK MEGUNDI, ADVOCATE)
Location: High
Court of
Karnataka AND:
1. SMT. JALAJA SHEDTHI @ JALAJA SHETTY
W/O. LATE HIRIYANNA SHETTY,
AGED ABOUT 84 YEARS,
RESIDING AT NO.303, 3RD CROSS,
INDRANI APARTMENT, DESHPANDE NAGAR,
HUBLI, TRAFFIC ISLAND,
HUBBALLI - 580 029.
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2. MR. RAVINDRA H SHETTY,
S/O. LATE HIRIYANNA SHETTY,
AGED ABOUT 65 YEARS,
RESIDING AT FLAT NO.103, VENKATAGIRI,
OPP. BAPPANADU TEMPLE, BAPPANADU,
MULKI - 574 154, D.K. DISTRICT.
3. MRS. SUJATHA P. SHETTY
D/O LATE HIRIYANNA SHETTY
AND W/O PADMANABHA SHETTY
AGD ABOUT 57 YEARS
R/AT NO.A-12, ASHOKA APARTMENT
BHAVANI NAGAR, KESHWAPUR
HUBBALLI - 580 023.
4. MR. JAGADEESHA H SHETTY
S/O. LATE HIRIYANNA SHETTY,
AGED ABOUT 56 YEARS,
RESIDING AT NEO. A-12, ASHOKA APARTMENT,
BHAVANI NAGAR, KESHWAPUR,
HUBBALLI - 580 023.
5. MRS. SUREKHA S. SHETTY,
D/O. LATE HIRIYANNA SHETTY,
AND W/O. MR SURESH,
AGED ABOUT 54 YEARS,
RESIDING AT NO.2-182C, "SHRI KRISHNA",
GUME BETTU, 76 BADAGUMANE,
NEAR BHARATH RICE MILL, ALEVOOR,
UDUPI TALUK - 574 118.
...RESPONDENTS
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE
ORDER DATED 05.12.2025 PASSED BY THE HONBLE PRINCIPAL
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WP No. 812 of 2026
HC-KAR
SENIOR CIVIL JUDGE AND C.J.M, UDUPI, ON THE APPLICATION
FILED UNDER ORDER XIV RULE 2 CPC IN O.S.NO.139/2024
(ANNEXURE-A) AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
This petition by the defendants in O.S. No.139/2024 on
the file of the Principal Senior Civil Judge and CJM, Udupi, is
directed against the impugned order dated 05.12.2025
whereby the application filed by the petitioner - defendant No.2
under Order XIV Rule 2 CPC to decide additional Issue No.1 as
a preliminary issue and decided the same before proceeding
further in the matter was rejected by the trial Court by holding
as under -
The Defendant No.2 filed application under
Order XIV Rule 2 of CPC prays the court to take
additional issue No.1 as preliminary issue and
decide it before proceed with the matter.
Defendant No.2 sworn to an affidavit, wherein
he is stated that the plaintiff have filed the suit for
partition and for separate possession, in respect of
the family properties. The court had framed the
issues, wherein, the additional issue No.1 is with
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regard to question of limitation. This issue goes to
the root of the suit as it decided the maintainability
of the suit. Accordingly, pray the court to treat the
said issue as preliminary issue.
The plaintiff filed objections to the L.A. filed
by the defendant No.2.
Heard.
The plaintiff filed the suit for partition and for
separate possession. The defendant has taken the
contention that the suit is barred by limitation and
cause of action is also barred by limitation Under
Order XIV Rule 2 of CPC. only those issues which
are pure issues of law and which can dispose all the
suit can be treated as preliminary issue. Wherein,
issue involves mixed question of law and facts
cannot be tried preliminary issue.
In the present case, the additional issue No.1
framed by this court is of limitation which is mixed
question of law and fact. Therefore, it does not
fallen within the ambit of Order XIV Rule 2(2) of
CPC. Hence, application filed by the defendant No.2
to treat the additional issue No.1 as preliminary
issues is not maintainable. The said issue shall be
tried along with the other issues at the time of full
fledged trial. Moreover, the cause of action is
deniable of facts. Now at this stage, one cannot be
decided the suit as barred by limitation and there is
no cause of action to file the suit, since the cause of
action regarding continuous and not stagnant.
Hence, I proceed to pass the following:
ORDER
I.A. filed by the Defendant No.2 under Order
XIV Rule 2 of CPC is hereby rejected.
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2. A perusal of the material on record including the
impugned order will indicate that the trial Court has come to
the correct conclusion that additional issue No.1 framed by the
trial Court as regards limitation gave rise to a mixed question
of fact and law which would not fall within the scope and ambit
of "pure question of law" as contemplated under Order XIV Rule
2 CPC as a consequence of which the said issue pertaining to
limitation, which is a mixed question of fact and law, cannot be
treated as a preliminary issue as held by the Apex Court in
several judgments including the case of P Kumarakuruban
vs. P Narayan and others reported in 2025 SCC Online SC
975.
3. Under these circumstances, I do not find any
illegality or infirmity in the impugned order which cannot be
said to occasion failure of justice warranting interference by
this Court as held by the Apex Court in the case of Radhey
Shyam and Ors v Chhabi Nath and Ors - (2015) 5 SCC
423; K.P. Natarajan and Ors. vs. Muthalammal and Ors -
AIR 2021 SC 3443; and in Mohd. Ali v V. Jaya - (2022)
10 SCC 477. Accordingly, I do not find any merit in the
petition and the same is hereby disposed of without interfering
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with the impugned order. However, it is made clear that all
rival contentions on all issues including the additional issue
regarding limitation are kept open and no opinion is expressed
on the merits/demerits of the rival contentions.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
YKL
List No.: 1 Sl No.: 32
