IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NOs.35917-35918 OF 2015 (GM-CPC) Between:
Mrs.Hemavathi Kotian, Aged about 65 years, D/o.Late F.S.Kotian, R/at First Avenue, D/No.11, N.M.P.Employees’ Housing Colony, Hosabettu, P.O.Kulai-575 026. ... Petitioner (By Sri. Sampat Anand Shetty, Adv.,) And:
1. Gladston Sardis Kotian, Aged about 70 years, D/o.Late F.S.Kotian, (Vide order dated 14.03.2019 Dead on 25.06.2017 LRs are 2, 8 and 9-26.03.2019).
2. Mrs.Evlin Vijaya Kumari, Aged about 60 years, D/o.Late F.S.Kotian, R/at Vijay Vihar, Laxmindra Nagar, 4th Cross, Udupi-576 102.
3. Mrs.E.S.Sumithra, Aged about 62 years, D/o. Late F.S.Kotian, R/at Ganesh Villa, No.1, Flat No.8, 1st Floor, Near Pratap Takies Theatre, Kolbhat Road, Thane-400 061.
4. Mrs. Adaline Swarnalatha, Aged about 60 years, D/o.Late F.S.Kotian, R/at A-10, Opp.Nobel Hospital, Magarpatta, P.S.Tower, Hadaper, Pune-28.
5. Eilin T.Shiri, Aged about 59 years, D/o.Late F.S.Kotian, R/at Canan 10, 19/38 Kanaka Vinayak Road, 3rd Cross, Shanthi Layout, Ramamoorthi Nagar, Bengaluru-560 016.
6. Mrs.Unis Nalini Sukumari, Aged about 57 years, D/o.Late F.S.Kotian, R/at H.No.12, Near Jnanabhodini School Road, Nagadevara Halli, Ramanath Nagar, Bengaluru-560 056.
7. Mrs.Sudha Cristebell, Aged about 55 years, D/o.Late F.S.Kotian, R/at D.No.4, 19th Street, N.M.P.T. Colony, Panambur, Post: Panambur, Mangalore-575 010.
8. Ranjith Nithin, Aged about 32 years, S/o.Gladston Sardis Kotian, R/at Vijay Vihar, Laxmindra Nagar, 4th Cross, Udupi-576 102.
9. Roshan Sudhir, Aged about 35 years, S/o.Gladston Sardis Kotian, R/at Vijay Vihar, Laxmindra Nagar, 4th Cross, Udupi-576 102.
10. Sri.Sujay Jathanna, Aged about 42 years, S/o.R.L.Jathanna, R/at Suhasini, No.76, Badagabettu Village, Udupi Taluk, Post:Bailur -574 102.
11. Mrs. Vinaya Saroja, Aged about 62 years, W/o. Sri. Willy Maria Sebestine, R/at Vinaya Villa, Ishwaranagara, Manipal-576 104.
12. Smt. Gladius Shiri, Aged about 50 years, W/o. Sri. Livingston Shiri, R/at C.J.Shetty Compound, Bailur, Udupi-576 101.
13. Livingston G.Shiri, Aged about 55 years, S/o.Late Sri.L.Shiri, R/at C.J.Shetty Compound, Bailur, Udupi-576 101.
14. Geeta J.Kotian, Aged about 50 years, Widow, R/at Arjun, B/05, Vishalnagar, Mare Road, Mid-Chowky, Malad (West), Mumbai-400 064.
15. Fredric Suhit Kotian, Aged about 36 years, S/o.Late Johnson S.Kotian, R/at Arjun, B/05, Vishalnagar, Mare Road, Mid-Chowky, Malad (West), Mumbai-400 064.
16. Supritha J.Kotian, Aged about 30 years, D/o.Late Johnson S.Kotian, R/at Arjun, B/05, Vishalnagar, Mare Road, Mid-Chowky, Malad (West), Mumbai-400 064.
17. Perdoor Basel Mission, Educational Society (Regd), Perdoor-Represented, By its President, Office at Perdoor Village, Udupi Taluk and District, Udupi-576 124.
18. F.S.K. Educational Society, Regd. Perdoor-
Represented by its President, Office at Perdoor Village, Udupi Taluk, Perdoor Post-576 124.
19. The Registrar of Societies, Udupi District, Udupi-576 101.
20. The District Educational Officer, Department of Public Instruction, Udupi-576 101.
21. The Inspector of Schools, Department of Public Instruction, Brahmavara, Udupi Taluk and District, Udupi-576 213.
22. Mrs. Vishala Veera Kumari, Aged about 66 years, D/o. Late F.S.Kotian, R/at Vishal, Kalpande House, Perdoor Village, Udupi Taluk, P.O.Perdoor, Udupi District-576 124.
23. Mrs. Sherylyn Sumalini, Aged about 40 years, D/o. Vishala Veera Kumari, R/at Vishal, Kalpande House, Perdoor Village, Udupi Taluk, Perdoor P.O.
Udupi District-576 124. ... Respondents (By Sri. A Madhusudhana Rao, Adv., for R1, 2, 9 & 18; Sri. D.R.Anandeeswara, HCGP for R-19, 20 & 21;
Notice to R-3, 4, 6, 7, 8, 10, 12, 13, 14, 15, 16, 17, 22 and 23 are d/w v/o dated 14.03.2019; R-5 & R-11 are served but unrepresented) These writ petitions are filed under Article 227 of the Constitution of India praying to set-aside the order dtd:09.07.2015 passed by the Court of Prl. Senior Civil Judge and CJM, Udupi on I.A.No.7 in O/S.No.05.2012 vide Annexure-A.
These Petitions coming on for Orders this day, the Court made the following:
ORDER The plaintiff has filed the present writ petition to quash the order dated 09.07.2015 passed on IA.No.7 made in O.S.No.5/2012 allowing in part and also order dated 06.08.2015 on IA.No.8 filed for reviewing the earlier the order dated 09.07.2015, rejecting with costs of Rs.400/-.
2. The plaintiff filed suit for declaration for permanent and mandatory injunction by raising various contentions. The contesting 18th defendant filed written statement. The learned counsel for the petitioner in the trial Court, submitted draft issues as per Annexure-E. The Court below framed issues considering the draft issues on 18.12.2014. Thereafter, the plaintiff filed an application under Order XIV, Rule 5 of Code of Civil Procedure on 19.01.2015 to accept the draft issues suggested by the petitioner in lieu of the issues framed by the Court below on 18.12.2014. When the application was resisted by the defendant, the trial Court by order dated 09.07.2015 allowed IA No.7 in part. Against the said order, petitioner filed IA.No.8 seeking review of the earlier order, the trial Court rejected the said IA.No.8 with cost of Rs.400/-. Hence, the present writ petitions are filed.
3. I have heard the learned advocates appearing for the parties to the lis.
4. Sri.Sampath Anand Shetty, learned counsel appearing for the petitioner contended that the impugned order passed by the trial Court as per Annexures-A and B are illegal and there is an error of jurisdiction vested in the Court below. The Court below is not at all justified in framing issues on 18.12.2014 in total ignorance of the draft issues filed by the advocate for the petitioner as per Annexure-E. The Court has not appreciated or considered that the draft issues furnished by plaintiff-petitioner are in accordance with rival contentions of the parties as borne out by the pleadings of the parties. Trial court has committed an error in rejecting the IA.No.7 in part and rejecting IA.No.8 in total. Therefore, he prays to allow the writ petitions.
5. In support of his contention, learned counsel for the petitioner relied upon the judgment in the case of Ramrameshwari Devi & Others V/s. Nirmala Devi & Others reported in 2011 8 SCC 249 and contended that the impugned order passed by the trial court cannot be sustained. Hence, he prays for allowing the writ petitions.
6. Per contra, Sri.A.Madhusudhana Rao learned counsel for respondent Nos. 1, 2, 9 and 18 and learned Government Advocate for other respondents, justified the impugned order passed by the trial Court and contended that the trial Court considered the relief sought for by the plaintiff while framing the issues, has considered some of the issues which are referred in draft issues Nos. 10, 11, 14 and 15. And also observed that if draft issues or any left out issues are relevant, certainly it can be considered during the stage of arguments or before the judgment is delivered. Accordingly, IA.No.7 filed by the plaintiff came to be allowed in part incorporating certain issues. Against the said order, review application came to be filed, the trial Court rightly rejected the application in holding that the scope of review is very limited and the petitioner has not made out any grounds to consider the review application. Therefore, learned counsel for the respondents sought to dismiss these writ petitions.
7. Having heard the learned counsel appearing for both the parties, it is undisputed fact that the plaintiff filed suit for declaration and permanent injunction contending that he is owner in possession by raising various contentions. Only 18th defendant filed written statement denying averments made in the plaint and sought for dismissal of the suit. Based on the draft issues submitted by the learned counsel for the petitioner, the trial court framed some issues which are referred in draft issue Nos. 10, 11, 14, 15 and draft issues are burden on the plaintiff as well as on the defendant in respect of the will but in the applications it has mentioned that they are not connected to the pleading and not subject of the adjudication.
8. The trial Court considered the application was of the considered opinion that the way in which the application is prepared that, as if it was making allegation/making fun of the Court. It is further observed that, if the draft issues or left out issues are relevant for the adjudication of the suit, certainly it can be appreciated during the stage of arguments or before the judgment is delivered. It is further recorded that perusal of the relief column shows the plaintiff is also seeking perpetual injunction. Whereas, the declaratory relief and the perpetual injunction are quite different and so it makes necessity of framing separate issues. Accordingly, the trial Court considered the framing issue Nos. 2 and 5 of the draft issues and 3 and 4 were connected to the same matter of the issue No.2. Therefore, issue Nos. 6 ,7 and 8 does not require the findings to get main relief. Accordingly, IA.No.7 was allowed in part incorporating certain issues. The application filed by the plaintiff reviewing the said order also came to be rejected by the trial Court on the ground that the grounds referred in IA.No.8 certainly would not come under the provisions of Section 114 (a) (b) of the Code of Civil Procedure.
9. It is well settled law that after considering both the applications, pleadings and oral as well as documentary evidence at the time of arguments or before the judgment is delivered, the Court can certainly frame any issues which necessitates in resolving the dispute between the parties. In view of the impugned order passed by the trial Court allowing IA.No7 in part and rejecting IA.No8 i.e. review application is just and proper. The petitioner has not made out any good grounds to exercise power under Articles 227 of Constitution of India.
10. The judgment relied upon by the learned counsel for the petitioner in the case of Ramerameshwari Devi & others stated supra is not in consonance with the facts and circumstances of the present case. It is needless to observe that if trial Judge thought fit to frame the issues while proceeding with the suit, it is always open for the learned trial Judge to resolve the dispute between the parties. The petitioner has not made out any good grounds to interfere with regard to impugned order.
Accordingly petitions are dismissed.
Sd/- JUDGE SB