IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.13018 OF 2017 (GM-CPC) BETWEEN:
1 . MRS DIVYANI SHETTY D/O.LATE MANI SHETTY, AGED ABOUT 42 YEARS, 2 . MRS NANDINI SHETTY D/O. LATE MANI SHETTY, AGED ABOUT 40 YEARS, BOTH R/AT KAMBAL CROSS ROAD, NEAR NAVADURGA TEMPLE, OPP: POLICE COMMISSIONERS BUNGLOW, KAMBLA, MANGALORE, D.K.DISTRICT.
...PETITIONERS (BY SRI. AJAY PRABHU.M, ADVOCATE FOR SACHIN B.S., ADVOCATE) AND:
1 . MRS. SHANTHALA T.S., W/O.LATE T.SATISHCHANDRA, AGED ABOUT 57 YEARS, 2 . SANTHOSCHANDRA T.S., S/O.LATE T.SATISCHANDRA, AGED ABOUT 40 YEARS, 3 . MRS. SHWETHA R.PAI, D/O.LATE T.SATISHCHANDRA, AGED ABOUT 35 YEARS, ALL ARE R/AT NO.3RD CROSS, GANDHINAGAR, MANGALORE.
4 . MANI SHETTY, AGED ABOUT 75 YEARS, R/AT KAMBLA CROSS ROAD, NEAR NAVADURGA TEMPLE, OPP: POLICE COMMISSIONERS BUNGLOW, KAMBLA, MANGALORE, D.K.DISTRICT-575 001.
5 . MRS. GULABI @ SHARAD SHEDTHI, AGED ABOUT 65 YEARS, W/O MANI SHETTY, R/AT KAMBLA CROSS ROAD, NEAR NAVADURGA TEMPLE, OPP: POLICE COMMISSIONERS BUNGALOW, KAMBLA, MANGALORE, D.K.DISTRICT-575 001.
6 . RAMESH AGED ABOUT 40 YEARS, R/AT KAMBLA CROSS ROAD, WORKING AT VILLAGE ACCOUNTANTS OFFICE, LADY HILL, MANGALORE D.K.DISTRICT-575001.
…RESPONDENTS (BY SRI G.RAVISHANKAR SHASTRY, ADVOCATE ) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD.15.3.2017 PASSED ON IA.NO.11 IN O.S.NO.743/2011 ON THE FILE OF CIVIL JUDGE AND JMFC MANGALORE D.K, AS PER ANNEX-A AND CONSEQUENTLY ALLOW I.A.NO.11 AS PRAYED FOR AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners being the defendants in an injunctive suit in O.S.No.743/2011, are invoking the writ jurisdiction of this Court for assailing the order dated 15.03.2017, whereby, their application in I.A.No.2 filed under Order XIV Rule 5 of CPC, 1908, for framing of additional issues in respect of a counter claim has been rejected by the learned Civil Judge, Mangaluru, D.K., as per Annexure-A. After service of notice, the respondents having entered appearance through their counsel resist the Writ Petition.
2. Having heard the learned counsel for the parties and having perused the Petition Papers, the impugned order is liable to be set at naught inasmuch as it does not much advert to the contentions taken up in the counter claim at all; when the counter claim is filed, the framing of issues cannot be confined to the plaint averments alone and even in respect of a counter claim, there has to be issues framed between the parties; this having not been done, there is error apparent on the face of record, warranting indulgence of Writ Court.
In the above circumstances, this Writ Petition succeeds; impugned order is quashed; the Court below is directed to reconsider petitioners’ application filed under Order XIV Rule 5 r/w Section 151 of CPC, a copy whereof is at Annexure-F within a period of eight weeks, all contentions of the parties having been kept open.
No costs.
Sd/- JUDGE DS