IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.18972 OF 2014 (GM - CPC) Between:
H.C. Yathish, Aged about 41 years, S/o late H.R. Channegowda, Director, Hasanamba Dental College, Hassan City, Hassan District – 573 201. ... Petitioner (By Smt. Kavitha H.C., Advocate) And:
S.M. Ravi, Age 45 years, S/o Moganna Gowda, Contractor, Beeranahallli Kere, Police Colony, Hassan Town, Cumentry residing at House No.211, Ward No.13, Hemavathy extension, K.R.Pete, Mandya District – 571 401. ... Respondent (By Sri.M.Raghavendra Achar, Advocate) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 08.01.2014 as per Annexure – F on I.A.No.5, in O.S.No.519/2009, on the file of Prl. Civil Judge (Sr.Dvn.) and JMFC at Hassan and etc., This Writ Petition coming on for orders this day, the Court made the following:-
ORDER Defendant in O.S.No.519/2009 on the file of Additional Civil Judge (Sr. Dn.) and JMFC, Hassan, has filed this writ petition impugning the order dated 8.1.2014 rejecting his application in I.A. No.5 under Section 151 of CPC.
2. Brief facts leading to filing of this writ petition are as under ;
The aforesaid suit was filed against the defendant on the ground that malicious statement was made against the plaintiff. When the suit was pending consideration, it is seen that the predecessor of the Presiding Officer of the Court below by order dated 18.3.2013 has expressed his opinion that preliminary issue is required to be framed regarding the plaintiff’s cause of action to file the said suit. Though the said opinion was expressed on 18.3.2013, it is seen that appropriate issue was not framed. The records would also indicate that subsequently learned counsel for defendant died and the matter prolonged for some time and there were nobody to represent the defendant.
3. Thereafter, the learned counsel on record for the defendant immediately filed I.A. No.5 under Section 151 of CPC seeking the Court below to frame appropriate issue regarding the cause of action for the plaintiff to file the said suit and thereafter, to consider the same as preliminary issue. However, the successor of the Presiding Officer of the Court below, by order dated 8.1.2014, has rejected the application.
4. On going through the order sheet dated 18.3.2013 as well as 8.1.2014 along with the copy of the application and the affidavit filed in support thereof, this Court is of the considered opinion that once the decision was taken by the predecessor of the Presiding Officer of the Court below holding that there is need to frame preliminary issue and recorded the same in the order sheet and if the same is reversed by the subsequent Presiding Officer, the same would be erroneous.
5. In that view of the matter, the order dated 8.1.2014 passed in O.S. No.519/2009 on the file of the Additional Civil Judge and JMFC, Hassan, is set aside. Consequently, the Court below is directed to frame an appropriate issue regarding plaintiffs cause of action to file the said suit and thereafter, hear the same as preliminary issue and proceed with the suit. With such observation, this writ petition is disposed of.
6. In view of disposal of the writ petition, I.A. No.1/2018 does not survive for consideration and it is accordingly dismissed.
Sd/- JUDGE Cs* CT:SN