IN THE HIGH COURT OF KARNATAKA AT BENGALURU Dated this the 15th day of December, 2017 BEFORE THE HON'BLE MR.JUSTICE P.S. DINESH KUMAR Writ Petition No.38782/2014 (GM-CPC) BETWEEN:
SMT.LALITHAMMA @ LALITHA W/O LATE SRI M. VEERAPPA REDDY AGED ABOUT 64 YEARS R/A. IN A PORTION OF THE PROPERTY BEARING SY.NO.105/1, MURUGESHPALYA AIRPORT ROAD, BANGALORE ...PETITIONER (By Shri JAYAKUMAR S. PATIL, SENIOR ADVOCATE FOR Shri SHIRISH KRISHNA, ADVOCATE) AND 1. SMT.V.G.NEELAMMA CLAIMING AS W/O LATE SRI M.VEERAPPA REDDY AGED ABOUT 56 YEARS NO.789, H.A.L., 3RD STAGE GEETHANJALI LAYOUT NEW THIPPASANDRA BANGALORE-560 035 2. SMT.V.SHYAMALA CLAIMING AS D/O LATE M. VEERAPPA REDDY W/O.SRI.PILLA REDDY AGED ABOUT 35 YEARS NO.11, 12TH MAIN, 14TH CROSS WILSON GARDEN BANGALORE-560 027 3. SRI.V.VEERABADRASWAMY CLAIMING AS S/O LATE SRI.M.VEERAPPA REDDY AGED ABOUT 33 YEARS NO.789, H.A.L., 3RD STAGE GEETHANJALI LAYOUT NEW THIPPASANDRA BANGALORE-560 035 4. Ms.GAYATHRI DEVI CLAIMING AS SECOND D/O LATE SRI.M.VEERAPPA REDDY AGED ABOUT 31 YEARS NO.789, H.A.L., 3RD STAGE GEETHANJALI LAYOUT NEW THIPPASANDRA BANGALORE-560 035 5. SRI.V.SOMANATHASWAMY CLAIMING AS S/O LATE SRI.M.VEERAPPA REDDY AGED ABOUT 29 YEARS, NO.789, H.A.L., 3RD STAGE GEETHANJALI LAYOUT NEW THIPPASANDRA BANGALORE-560 035 ...RESPONDENTS (By Shri KESTHUR N. CHENDRA SHEKHAR ) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.4.7.2014 PASSED BY THE COURT OF XLI-ADDITIONAL CITY CIVIL JUDGE, BANGALORE (CCH.NO.42) ON THE APPLICATION OF THE PETITIONER FILED UNDER ORDER-XIV RULE-5 OF CIVIL PROCEDURE CODE IN O.S.NO.7811 OF 2007 VIDE ANNEX-G AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 30.11.2017, COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, P.S.DINESH KUMAR, J., PRONOUNCED THE FOLLOWING:-
ORDER The petitioner, in this writ petition, is calling in question order dated 4.7.2014 in O.S.No.7811/2007 on the file of XLI Additional City Civil Judge, Bangalore, rejecting her interlocutory application filed under Order XIV Rule 5 of CPC.
2. Heard Shri Jayakumar S. Patil, learned Counsel for the petitioner and Shri Kesthur N. Chandra Shekhar, learned Counsel for the respondents.
3. For the sake of convenience, the parties shall be referred to as per their status before the Trial Court.
4. Petitioner is the sole defendant before the Trial Court. The suit is for grant of permanent injunction against the defendant, restraining her from dealing with the suit schedule property.
5. Defendant contested the suit by filing her written statement. Based on the pleadings, the Trial Court framed issues on 18.12.2013. Subsequently, defendant filed the instant application with a prayer to recast issue No.2 as follows:-
“Whether the suit as brought for injunctive relief alone is maintainable?”
6. The plaintiffs resisted defendant’s application for recasting the issues by filing their statement of objections. After hearing the parties, the Trial Court has rejected the said application. Hence, this writ petition.
7. Shri Jayakumar S. Patil, learned Senior Counsel, arguing in support of this writ petition, contended that, a suit for injunction restraining the defendant from dealing with the suit schedule property is not maintainable without a prayer for declaratory relief. The Trial Court has rejected the application filed by the defendant without assigning any reasons. Therefore, it is unsustainable in law. Accordingly, he prayed for allowing this writ petition.
8. Per contra, Shri Kesthur N. Chandra Shekhar, learned Counsel appearing for the respondents, contended that, the suit is of the year 2007 and the petitioner has filed the instant application to drag the proceedings. There is no dispute with regard to the title of the suit schedule property in view of the finding recorded in the judgment dated 30.3.2013 in LAC No.108/1992 on the file of XLIX Additional City Civil and Sessions Judge, Bengaluru. He further contended that the defendant has filed the instant application without seeking amendment of written statement. He further argued that the learned Trial Judge was right in rejecting the application as no issue can be framed without pleading.
9. I have carefully considered the submissions made by the learned Counsel for the parties and perused the records.
10. The instant application for recasting of the issues is filed by the defendant in the suit. The plaint averments disclose that there is a dispute with regard to inter se relationship between the parties. The first plaintiff claims to be the wife of one Late M.Veerappa Reddy and plaintiffs No.2 to 5 claim themselves as his children. The defendant, in her written statement claims to be the lawfully wedded wife of the very same Late M.Veerappa Reddy. The plaint also discloses that there are other litigations, which the parties are pursuing.
11. It is settled that, issues are framed based on the pleadings. In the written statement, defendant has not specifically pleaded that a suit of this nature is not maintainable. The defendant has not made any attempt to get the written statement amended. Therefore, no exception can be taken to the order impugned rejecting defendant’s application.
12. Resultantly, this writ petition must fail and is accordingly dismissed.
No costs.
Sd/- JUDGE cp*