MRITYUNJAYA VIDYA PEETHA HAUNSBHAVI v. SHANMUKHAYYA

AT:HAUNSBHAVI, TQ:HIREKERUR, DT:HAVERI, BY ITS WORKING PRESIDENT SRI PASHUPATI S/O. VEERAPPA KERUDI, AGE:80 YEARS, OCC:AGRICULTURE and ADVOCATE, R/O. HANUSBHAVI, TQ:HIREKERUR, DT:HAVERI.

SRI PASHUPATHI S/O. VEERAPPA KERUDI, AGE:80 YEARS, OCC:AGRICULTURE and ADVOCATE, R/O. HAUNSBHAVI, TQ:HIREKERUR, DT:HAVERI. (BY SRI. P G MOGALI, ADVOCATE) AND: …PETITIONERS SHIVAKUMAR HIREMATH SHIVAKUMAR HIREMATH SHANMUKHAYYA S/O. BHAGARAYYA MALIMATH AGE:42 YEARS, OCC:POLITICS, R/O. HAUNSBHAVI, TQ:HIREKERUR, DT:HAVERI. …RESPONDENT (BY SMT. VINAYA KUPPELLUR, ADVOCATE FOR SRI. N.R.KUPPELLUR, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED IN O.S.NO.74/2014 ON I.A.NO.9 DATED:03.07.2018 BY THE LEARNED SENIOR CIVIL JUDGE & JMFC, AT:HIREKERUR VIDE ANNEXURE-"F" & ALLOW I.A.NO.9, DATED:14.03.2018 VIDE ANNEXURE-"E". - 2 - NC: 2024:KHC-D:4553 WP No.106626 of 2018 THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Heard the learned counsel for the parties.

2. This writ petition is filed by the plaintiffs in O.S. No.74/2014 on the file of the Senior Civil Judge & JMFC, at Hirekerur, challenging the order dated 03.07.2018 on I.A. No.9 filed by plaintiff No.2.

Having heard the learned counsels appearing for the parties, it is not in dispute that the plaintiffs have filed the suit seeking for declaration and consequential relief. The plaintiffs, at paragraph 2 of the plaint, have stated the Mrutyunjaya Vidyapeetha Trust registered under the provisions of the Bombay Public Trust Act, 1950 (for short, ‘the Trust Act’). The said averment made in the plaint has been countered in the written statement filed by the defendant particularly in paragraphs 3 and 17 of the written statement. Accordingly, the Trial - 3 - NC: 2024:KHC-D:4553 WP No.106626 of 2018 Court framed issue No.1 placing onus on the plaintiffs to prove the said issue that the plaintiffs-institution is registered as per the Charitable and Religious Trust Act, 1920, which has been alleged by the defendant in the written statement and not the plaintiffs.

It is the case of the plaintiffs that the plaintiffs- institution is registered under the provisions of the Societies Registration Act, 1860, and thereafter registered under the provisions of the Bombay Public Trust Act, 1950. The defendant has urged in the written statement that the plaintiffs-institution formed chargeable under Charitable and Religious Trust Act, 1920.

In that view of the matter, taking consideration the pleadings on record, the Trial Court has wrongly framed issue No.1, putting burden on the plaintiffs to prove that the said institution is formed under the provisions of Charitable and Religious Trust Act, 1920, which is not correct and there is no averment in the plaint relating to the same. Accordingly, the Trial court ought to - 4 - NC: 2024:KHC-D:4553 WP No.106626 of 2018 have reframed issue No.1 by looking into averments made in the plaint and countered in the written statement. The Trial Court has not framed issue No.1 looking into the averments made in the plaint and therefore, rejection of I.A. No.9 is on erroneous assumption of fact that the said plea has been urged by the plaintiff, which is not correct.

Hence, order dated 303.07.2018 on I.A. No.9 is set aside and the matter is remitted to the Trial Court to reframe the issue relating to issue No.1 and pass appropriate orders accordingly. In the result, writ petition is allowed. Sd/- JUDGE KMS List No.: 1 Sl No.: 12