Writ Petition No. 22427 of 2019 · The High Court
Case Details
- 1 - NC: 2025:KHC:12271 WP No. 22427 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.I.ARUN WRIT PETITION NO. 22427 OF 2019 (GM-CPC) BETWEEN: SMT. POORNIMA R ULLAL W/O RAVINDRANATHA ULLAL AGED 62 YEARS R/AT PURABDA KUTEER, MAROLIPADE KANKANADY POST, MAROLI VILLAGE MANGALORE TALUK, D.K.DISTRICT PIN - 575 004. …PETITIONER Digitally signed by H K HEMA Location: HIGH COURT OF KARNATAKA (BY SRI. RAVISHANKAR SHASTRY G, ADVOCATE) AND: 1. LEENA D/O LATE MRS. TARA N. CHANDAVARKAR AGED 66 YEARS 2. MR.NEEL S/O LATE MRS.TARA.N. CHANDAVARKAR AGED 64 YEARS 3. PREMANAND N S/O LATE MRS.TARA.N.CHANDAVARKAR AGED 66 YEARS RESPONDENTS NO 1 TO 3 ARE ALL RESIDING AT NO.7, CHANDRAVARKAR LAYOUT BEHIND PALACE CROSS ROAD, BANGALORE. - 2 - NC: 2025:KHC:12271 WP No. 22427 of 2019 4. MRS. SHANTHA A GERSAPPE W/O A.B.GERSAPPER AGED 75 YEARS R/AT 7/8, II CROSS, PALACE CROSS ROAD, BANGALORE PIN – 560 020. 5. SMT. SEITA N SHIVA RAO W/O LATE N.SHIVA RAO, R/AT NO.17, MILTON STREET BANGALORE, PIN – 560 005. SINCE DECEASED, REP. BY R-8 WHO IS ALREADY ON RECORD AMENDED VIDE COURT ORDER DATED 17/03/2025. 6. MRS. PRAEMI M RAO D/O LATE N.SHIVA RAO W/O MANOHAR RAO AGED 78 YEARS R/AT NO.11, LLYOD ROAD, COOKE TOWN, BANGALORE PIN - 560 005. 7. MRS. SHEILA P.BARUA S/O LATE SHIVA RAO W/O PRETHAM BARUA AGED 76 YEARS R/AT 1 F, HARMONY, ANDREE ROAD, BANGALORE PIN - 560 025. 8. N. SUBBANA SHIVARA RAO S/O LATE N. SHIVA RAO AGED 70 YEARS R/AT NO.17, MILTON STREET BANGALORE, PIN - 560 005. - 3 - NC: 2025:KHC:12271 WP No. 22427 of 2019
Legal Reasoning
9. MR. K. HARINITH S/O K.SUNDER AGED 43 YEARS 10. DR. HARSHITHA D/O K.SUNDER, AGED 38 YEARS 11. K.SUNDER S/O LATE KOTIAPPA POOJARY AGED 74 YEARS RESPONDENTS NO 9 TO 11 ARE ALL RESIDING AT NEAR SUNDER-SON SERVICE STATION OPP. KARNATAKA BANK HEAD OFFICE, PUMPWELL, MANGALORE, D.K.DISTRICT PIN - 575 002. …RESPONDENTS (BY SRI. K R SUBRAMANYA RAO, ADVOCATE FOR R1 AND R2 A/W GPA COPY AND ALSO FOR R3 TO R8; SRI. AKASH B SHETTY, ADVOCATE FOR R9, R10 & R11; V/O DATED 17/03/2025 LR OF DECD R5 IS ALREADY ON RECORD AS A8) THIS W.P. FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD 04.04.2017 IN O.S.NO.143/2014 PASSED BY THE I ADDL. SR. C.J MANGALURU, CERTIFIED COPY OF WHICH IS PRODUCED AT ANNEXURE-A AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 4 - NC: 2025:KHC:12271 WP No. 22427 of 2019 CORAM: HON'BLE MR JUSTICE M.I.ARUN ORAL ORDER Aggrieved by the order dated 04.04.2017 passed in O.S. No.143 of 2014 and also on the order passed on the application under Order 47 Rule 1 r/w Section 114 and under Section 151 of the Code of Civil Procedure, which is dated 06.03.2019, the present writ petition is preferred by the plaintiff therein. 2. The petitioner filed O.S.No.143/2014 before the Court of Senior Civil Judge, Mangalore, with the following prayers:- "(1) For a declaration that, the plaintiff is entitled to continue the possession and enjoyment of plaint A schedule property without any interference or disturbances of whatsoever nature from the defendants or their successors, on the basis of the concept of Adverse possession through which she acquired title by prescription and CONSEQUENTIALLY, for Permanent Prohibitory Injunction restraining the defendants, their successors – in - title men, servants agents or any body claiming under or through them from in any way interfering with the peaceful possession and enjoyment of plaint A schedule property by the plaintiff or in any way dispossessing therefore or in - 5 - NC: 2025:KHC:12271 WP No. 22427 of 2019 any way invading on the same in any manner whatsoever. ALTERNATIVELY, for a Declaration that, the plaintiff is entitled to continue the possession and enjoyment of plaint A schedule property, on the basis of part performance of oral Agreement of Sale dated 3-5-1962 entered into between late N Rama Rao and the mother of plaintiff Smt. Radha Bhandary; without any interference or disturbance from the defendants or their successors, and CONSEQUENTIALLY, for Permanent Prohibitory Injunction restraining the defendants, their successors – in - title men, servants agents or any body claiming under or through them from in any way interfering with the peaceful possession and enjoyment of plaint A schedule property by the plaintiff or in any way dispossessing therefore or in any way invading on the same in any manner whatsoever. (2) For granting costs of the suit. (3) For such other, further relieves as the Court may deem fit to grant under the circumstances of the case.” 2.1 The contesting defendants filed their written statement and denied the averments made in the plaint by the petitioner. - 6 - NC: 2025:KHC:12271 WP No. 22427 of 2019 2.2 Based on the pleadings, the Trial Court has framed the following issues:- ISSUES 1. Whether plaintiff proves that her mother requested the ancestors of defendants to sell the suit A schedule property, accordingly on 3.5.1962 entered into oral agreement for sale for valid consideration amount of Rs.500/- and executed receipt? 2. Whether plaintiff further proves that since no registered sale deed got executed by the ancestors of defendants, her mother filed declaration grant of occupancy right in her favour? 3. Whether plaintiff further proves that she has perfected title over the suit schedule property by way of adverse possession as contended in para 11 of the plaint? 4. Whether plaintiff proves her possession over the suit schedule property as on the date of suit? 5. If so, further proves the illegal interference caused by the defendants? 6. Whether suit is not maintainable? 7. Whether the suit is properly valued and court fee paid is sufficient? 8. Whether plaintiff is entitled for the relief sought in the suit? 9. What order or decree? - 7 - NC: 2025:KHC:12271 WP No. 22427 of 2019 2.3 After the commencement of the plaintiff’s evidence and at the stage of cross-examination, the defendants had orally prayed the Trial Court for treating issue No.6 as a primary issue and the Trial Court has passed the impugned order dated 04.04.2017, which reads as under:- “Case called out. PW 1 present, defendants counsel submits that in their WS they have set up plea that the suit of the plaintiff is not maintainable in the present form and before present forum. In this regard issue No.6 has been framed. Therefore it has to be heard preliminary. On perusal of the records prayer sought by the plaintiff in the plaint and contention set up the defendants in the WS clearly reveals that various questions have been raised with regard to maintainability of the suit of the plaintiff and its about jurisdiction of the court. Hence it is necessary to consider issue No.6 as preliminary issue. Accordingly heard the arguments of counsel for defendants on preliminary issue. Counsel for plaintiff prays for time to submit his arguments, call on 5.4.2017.” 3. Aggrieved by the same, the plaintiff/petitioner made an application under Order 47 Rule 1 r/w Section 114 and under Section 151 of the Code of Civil Procedure, with the following prayers :- - 8 - NC: 2025:KHC:12271 WP No. 22427 of 2019 “Application Filed Under Order 47 Rule 1, R/W Section 114 and 151 of C. P. Code For the reasons stated in the accompanying Memo of Facts, it is prayed on behalf of the Petitioner/plaintiff that, this Hon'ble Court may be pleased to the Review and Recall the order dated 04-04-2017, ‘treating the issue No: 6 as preliminary issue’ in the interest of justice.” 3.1 Rejecting the said application, the Trial Court passed the following order :- “The application filed by the applicant/plaintiff U/O 47 Rule 1 of CPC, R/w Section 114 of CPC and U/s 151 of CPC is hereby dismissed. No order as to costs.” Challenging the same, the present writ petition is filed. 4. The question involved in the instant case is, Whether the Trial Court erred in treating issue No.6 in O.S.No.143 of 2014 as a preliminary issue? 5. Order 14 Rule 2 of The Code of Civil Procedure reads as under :- “2. Court to pronounce judgment on all issues. - 9 - NC: 2025:KHC:12271 WP No. 22427 of 2019 (1) Notwithstanding that a case may be disposed of on preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the
Decision
case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in-force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.” 6. This Court in Jagadish Poonja v. The South Canara Hotel Complex Pvt. LTd., Bangalore & others1, in paragraph Nos.20 and 21 has held as under :- “20. Order 14, Rule 1 (4) provides that issues are of two kinds: (a) issues of fact, (b) issues of law. Order 14, Rule 2 makes it obligatory for the Court to pronounce judgment on all issues. But, it is subject to the provisions of sub-rule (2) which gives a discretion to the Court to frame issues of law only 1 2015(4) AKR 458 - 10 - NC: 2025:KHC:12271 WP No. 22427 of 2019 if it relates to the jurisdiction of the Court or a bar to the institution of the suit itself. The intention of the legislature as is apparent from the wording of Order 14, Rule 2 is clear that the disposal of the suit should be expedited. It has therefore, been left to the discretion of the Court to frame an issue of jurisdiction as a preliminary issue if the Court thinks that the suit should be disposed of on that issue. A perusal of sub-rule (2) of Rule 2 of Order 14 would show that issue of law may be tried as a preliminary issue provided it relates to the jurisdiction of the Court or to a bar to the suit created by any law for the time being in force. Therefore, all issues of law cannot be tried as a preliminary issue. It is only issues of law relating to jurisdiction of the Court or a bar to the suit created by any law which shall be tried as a preliminary issue and nothing else. However, decision on issues even of law depends upon the decision on fact, then it cannot be tried as a preliminary issue, as otherwise it would result in a lop-sided trial of the suit. Order 14, Rule 1 (4) does not mention about the mixed question of law and fact. Therefore, sub- rule (2) of Rule 2 of Order 14 is confined to only issues of law. It does not deal with a mixed question of law and fact. A question relating to jurisdiction may be a pure question of law or a mixed question of law and fact. 21. Question of limitation is ordinarily a mixed question of law and fact. Plea of limitation cannot be decided as an abstract principle of law divorced - 11 - NC: 2025:KHC:12271 WP No. 22427 of 2019 from facts, as in every case, the starting point of limitation has to be ascertained, which is entirely a question of fact. Therefore, it is now well settled that a plea of limitation is a mixed question of fact and law. The jurisdiction to try issues of law apart from issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone. But the Code confers no jurisdiction upon the Court to try mixed issues of law and fact as preliminary issue. Therefore, the issue regarding limitation cannot be tried as a preliminary issue.” [[ 7. Thus the Trial Court is required to answer all issues notwithstanding the fact that a particular issue has been treated as a preliminary issue. However, pronouncement on all issues is not required, if the preliminary issue relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force. 8. The respondent herein was asked a pointed question by the Court as to how there is a bar on the Trial Court to try the suit in the instant case or how the Trial Court lacks jurisdiction to try the same, they were not in a position to point out that such a defense is taken in their pleadings. - 12 - NC: 2025:KHC:12271 WP No. 22427 of 2019 9. However, at this juncture, a request was made by both the counsel for the petitioner and the respondents that the writ petition may be disposed of by setting aside the impugned orders, with a direction to the Trial Court to try the case as expeditiously as possible and dispose of the same. They further undertook to co-operate with the Trial Court for quick disposal of the case. 10. For the aforementioned reasons, the writ petition is hereby disposed of with the following:- ORDER i) The impugned order dated 04.04.2017 and order dated 06.03.2019 passed on the application filed under Order 47 Rule 1 r/w Section 114 and under Section 151 of the Code of Civil Procedure; both passed in O.S. No.143 of 2014 by the I Additional Senior Civil Judge, Mangaluru, D.K., are hereby set aside. - 13 - NC: 2025:KHC:12271 WP No. 22427 of 2019 ii) The Trial Court is directed to hear the matter on all issues and dispose of O.S. No.143 of 2014 as expeditiously as possible. iii) The parties are directed to co-operate with the Trial Court for quick disposal of the original suit. SD/- (M.I.ARUN) JUDGE Bss List No.: 1 Sl No.: 54