(BY SRI M S PURUSHOTHAMA, ADVOCATE) v. (BY SRI L RAJA, ADVOCATE)

SRI SRINIVASU S/O.SRI NARAYANASWAMY AGED ABOUT 56 YEARS RESIDING AT HALAGUR MALAVALLI TALUK MANDYA DISTRICT. ...PETITIONER (BY SRI M S PURUSHOTHAMA, ADVOCATE) AND : SMT JAYALAKSHMAMMA W/O SRI JAVARAYAPPA AGED ABOUT 66 YEARS RESIDING AT HALAGUR, REPRESENTED BY P.A. HOLDER SRI H J SRINIVAS MURTHY @ GIRISH. ...RESPONDENT (BY SRI L RAJA, ADVOCATE) ***** 2 THIS WRIT PETITION FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 7.12.2010 PASSED IN O.SNO.103/1990, ON I.A.NO.IX VIDE ANNEXURE-F, ON THE FILE OF THE CIVIL JUDGE, JUNIOR DIVISION, MALAVALLI IN SO FAR IT RELATES TO HEAR THE PRELIMINARY ISSUES FRAMED ALONG WITH THE OTHER ISSUES. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER The respondent filed a suit for partition. The suit was dismissed for default. On a Miscellaneous Petition being filed it was restored. The case of the plaintiff is that he had purchased certain items of the suit schedule property in the year 1979 and has continued to be in possession. That the restoration has been made without reference to the application seeking condonation of delay. Consequently, the same was challenged in Writ Petition. Aggrieved by the same, Miscellaneous Appeal was filed which was dismissed. 3 Aggrieved by the same, he filed Writ Petition 35523/2009. By the order dated 20-7-2010 the trial Court was directed to frame an issue as to whether the suit is barred by limitation and try the same as a preliminary issue. Thereafter, the trial Court by the impugned order has directed the consideration of the said preliminary issue to be tried along with the main issue. Hence, the present Petition.

#2. The learned counsel for the petitioner contends that the impugned order is erroneous and liable to be set aside. That the direction issued by this Court in Writ Petition No.35523/2009 has not been complied with. The specific direction to the trial Court is to consider it as preliminary issue and to record a finding on the same.

#3. On the other hand, the respondent defends the impugned order. 4

#4. The direction issued by this Court in Writ Petition No. 35523/2009 is clear. It is to the effect that the trial Court shall frame a preliminary issue as to whether the suit is barred by limitation. The trial Court entered upon a major discussion on the same and has even framed an issue as to whether grounds have been made out to frame an additional issue as a preliminary issue. Consequently it held that the preliminary issue should be treated along with other issues. The finding recorded by the trial Judge is wholly contrary to the directions issued by this Court. He has failed to understand the direction issued by this Court. In my view the trial Court should have appropriately considered the same as a preliminary issue by recording a finding. Failure to do so is a direct result of the non- compliance of the order passed by this Court. For the aforesaid reasons, the order dated 7-12-2010 5 passed in O.S.No.103/1990 on I.A. No.IX by the Civil Judge, (Junior Division), Malavalli, is set aside. The trial Court shall frame a preliminary issue forthwith and record a finding on the same in terms of the direction issued in the order dated 20-7-2010 in Writ Petition No.35523/2009 within a period of one month from the date of receipt of copy of this order. Writ Petition is disposed off with the above observations. Sd/- JUDGE rsk/-