Thirupathi Reddy vs Kanukuntla Alluri Lalithamma
2023 Latest Caselaw 2276 Tel

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           HON'BLE SRI JUSTICE K.SURENDER

        CIVIL REVISION PETITION No.2058 of 2023

ORDER:

This Civil Revision Petition is filed aggrieved by the order

dt.14.06.2023 passed in IA.No.69 of 2023 in OS.No.7 of 2012,

by the I Additional District & Sessions Judge, Jagtial, wherein

the learned District Judge dismissed the petition filed by the

petitioner/defendant No.5 under Order-14, Rule 2(2) r/w.151

of the CPC with a prayer to decide the additional issue framed

on 29.03.2023 as Preliminary Issue.

2. Heard. Perused the record.

3. The petitioner herein is the defendant No.5 in the

counter claim filed by defendant No.4 in trial Court who filed

petition under Order-14 Rule-2(2) r/w.151 of the CPC. It is

the case of the petitioner that the plaintiff filed a suit for

partition and separate possession against the defendants 1 to

3 in respect of land in Survey No.539/A to an extent of Ac.1.17

guntas. During the pendency of the suit, the 1st defendant died

and the 4th defendant was brought on record as Legal

Representative of her husband/1st respondent. 4th defendant

filed a counter claim in the suit claiming that she is having

1/3rd share in the counter claim land in Survey No.484 to an

extent of Ac.5.19 guntas. The respondents in the trial Court

filed written statement regarding the counter claim and

pleaded that he is not a co-parcenary member of Hindu Joint

Family of late Kanukuntal Ragaiah @ Raghavareddy and

further stated that earlier the issue has not been framed as to

whether the defendant No.4 has locus standi to file counter

claim. In the said circumstances, the trial Court allowed

IA.No.319 of 2013 and framed additional issue on 29.03.2023

to the effect that 'whether the counter claim filed by the 4th

defendant is maintainable."

4. The impugned order was passed dismissing the petition

filed by the petitioner/defendant No.5 in the counter claim

that the counter claim issue framed on 29.03.2023 has to be

decided as preliminary issue.

5. Learned trial Court Judge found that at the stage it

cannot be decided regarding the additional issue framed on the

basis of counter claim of 4th defendant is maintainable or not

and it can only be decided during the course of adducing

evidence in the main suit. Further, since the issue was already

been framed, the relief of deciding it as preliminary issue

cannot be granted. Accordingly the IA was dismissed.

6. The learned counsel appearing for the petitioner herein

would submit that the learned District Judge committed an

error in refusing to decide the counter claim as preliminary

issue since the subject property of the suit is different from

what was claimed in the counter claim. Accordingly, prayed to

allow the present revision.

7. As rightly found by the learned trial Judge, there is no

necessity to decide in the partition suit regarding the counter

claim of the 4th defendant. The Judgment of the Honourable

Supreme Court relied on by the counsel for the petitioner in

Sathyanath v. Sarojamani 1 has no application in the

present facts.

8. Only those issues that can be decided as preliminary

issues which fell within the ambit of clause (a) relating to the

'jurisdiction of the Court' and (b) which deal with the 'bar to

the suit created by any law for the time being in force'.

2022 (4) ALD 61 (SC)

9. Both the grounds are not raised in the present

application to decide the issue framed on 29.03.2023 as

preliminary issue.

10. Accordingly, the Civil Revision Petition stands dismissed.

As a sequel thereto, miscellaneous petitions, if any,

pending in this Revision Petition, shall stands closed.

_________________ K.SURENDER, J

Date: 12 .09.2023 tk

HON'BLE SRI JUSTICE K.SURENDER

CIVIL REVISION PETITION No.2058 of 2023

Dt.12 .09.2023

tk