IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 30652 OF 2018 (GM-CPC) BETWEEN:
SHIVARAM SHETTY, AGED ABOUT 53 YEARS, S/O LATE LOKAYYA SHETTY, R/AT MALLUR DHOTA HOUSE, MALLUR POST & VILLAGE, MANGALORE TALUK D.K.DISTRICT.
… PETITIONER (BY SRI. SACHIN B S, ADVOCATE) AND:
1. SAVITHA SHETTY AGED ABOUT 58 YEARS, W/O JAYA SHETTY, R/AT ALIKE DEVIKRUPA HOUSE, GANJINATA, MANGALORE 575001.
2. KUSUMA SHETTY, AGED ABOUT 63 YEARS, W/O JAYARAMA SHETTY, D/O S/O LATE LOKAYYA SHETTY, R/AT MALLUR DHOTA HOUSE, MALLUR POST & VILLAEG, MANGALORE TALUK 575001.
3. VASANTHI SHETTY, AGED ABOUT 61 YEARS, W/O KORAGA SHETTY D/O S/O LATE LOKAYYA SHETTY, R/AT PUSHPA NIVASA, WAGLE ESTATE, PADUVAL NAGARA, THANE, MAHARASTRA STATE 400601.
4. SHOBA SHETTY, AGED ABOUT 51 YEARS, D/O LATE LOKAYYA SHETTY R/AT MALLUR DHOTA HOUSE MALLUR POST & VILLAGE MANGALORE TALUK 575001 5. SANDYA SHETTY, W/O KISHORE SHETTY, AGED ABOUT 31 YEARS, R/AT THALAPADY DODDAMANE HOUSE, THALAPADY POST & VILLAGE, MANGALORE TALUK 575001.
6. SANDESH CHOWTA, S/O LATE SAROJINI, AGED ABOUT 29 YEARS, R/AT NELLIDHADI GUTTHU, BAJPE VILLAGE AND POST, MANGALORE TALUK 575001.
… RESPONDENTS (BY SRI. KETHAN KUMAR, ADVOCATE FOR R1; NOTICE TO R3 IS DISPENSED WITH VIDE ORDER DTED 19.11.2018;
R2, R4, R5, R6 ARE SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 03.04.2018 PASSED IN OS NO. 33 OF 2014 ON THE FILE OF SENIOR CIVIL JUDGE AND CJM MANGALORE D.K AS PER ANNEXURE-A TO THE EXTENT OF PASSING THE ORDER STATING THAT THE ADDITIONAL ISSUE OF COURT FEES AND VALUATION WOULD BE TRIED AND DETERMINED ALONG WITH OTHER ISSUED AFTER CONCLUSION OF TRIAL AND ETC., THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the defendant in a partition suit in O.S.No.33/2014 is invoking the writ jurisdiction of this Court for assailing the order dated 03.04.2018 a copy whereof is at Annexure-A whereby the learned trial judge having rejected his request for treating the issue as to the suit valuation & Court fee as a preliminary issue. After service of notice, the respondents having entered appearance through his counsel resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to grant indulgence in the matter for the following reasons:
(a) the Court below in its wisdom has recorded a finding that the issue which the petitioner wants to have treated as preliminary involves mixed question of law & facts with which this Court also is in agreement; it is a settled position of law that where mixed questions of facts & law are involved, ordinarily they are not treated as preliminary issue since trial become essential; where the entire suit itself merits trial, taking a part of the suit for consideration is not desirable, since such a course only brooks available delay in the disposal of the litigation;
(b) the impugned order even otherwise has not caused sufficient prejudice as to warrant invocation of writ jurisdiction inasmuch as whatever the petitioner wanted to achieve by having the said issue being treated as preliminary can be accomplished after the trial of the suit as a whole; thus, only the consideration of his grievance is deferred so that it will have a better treatment after the trial;
(c) the impugned order being a product of exercise of discretion, this Court ordinarily will not under take it’s deeper scrutiny/examination, as held by the Apex Court in the case of SADHANA LODH VS. NATIONAL INSURANCE COMPANY, (2003) 3 SCC 524; and lastly, (d) the reliance of the learned counsel for the petitioner on para no.35 of the Full Bench decision in VENKATESH R DESAI Vs. SMT.PUSHPA HOSAMANI AND OTHERS, ILR 2018 KAR 5095 does not come to his assistance, inasmuch as, even going by its text abundant discretion is recognized with trial court in exercise of which the impugned order has emanated, in the absence of any error of law having been pointed.
In the above circumstances, writ petition being devoid of merits, is dismissed.
Costs made easy.
Sd/- JUDGE Bsv