IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.33568 OF 2018 (GM-CPC) Between:
Sri. G.B.Shekharappa, S/o. Banappa, Aged about 52 years, Residing at Nellikatte Village, Bharamasagara Hobli, Chitradurga Taluk and District, Pin No.577 596. … Petitioner (By Sri. A.Madhusudhana Rao, Advocate) And:
1. Sri.G.S.Shankrappa, S/o. Siddappa, Aged about 42 years, Residing at Nellikatte Village, Bharamasagara Hobli, Chitradurga Taluk and District, Pin-577 596.
2. Sri.G.B.Basappa, S/o. Banappa, Aged about 54 years, Residing at Nellikatte Village, Bharamasagara Hobli, Chitradurga Taluk and District, Pin-577 596. … Respondents (R1 and R2 - Served and unrepresented) **** This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the impugned order 13.07.2018 passed by the Learned II Additional Civil Judge, Chitradurga, on I.A.No.4 in O.S.No.301/2014 produced at Annexure-F, allow this writ petition with costs, etc.
This Writ Petition coming on for Orders this day, the Court made the following:-
ORDER Mr.A. Madhusudhana Rao, learned counsel for the petitioner. None for the Respondents though served.
2. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 13/07/2018 passed by the Trial Court by which the application preferred by the petitioner under Order XIV Rule 5, r/w. Section 151 of the Civil Procedure Code,1908 (hereinafter referred to as ‘the Code’ for short) has been rejected.
3. The brief facts giving rise to the filing of this writ petition are that the plaintiff had filed the suit seeking the relief of declaration of title in respect of the land measuring 05 Guntas in respect of the suit schedule property as well as the relief of mandatory injunction directing the defendants to demolish the houses constructed by them and to deliver the vacant possession of the encroached portion of the same to the plaintiff.
4. At the stage of the plaintiff’s evidence, the petitioner filed an application under Order XIV Rule 5 of the Code, praying to frame the additional issues, which read thus:
“5] Whether the defendant No.2 proves that the suit of the plaintiff is badly barred by time?
6] Whether the defendant No.2 proves that, this Hon’ble Court had got pecuniary jurisdiction to entertain and file the suit?
7] Whether the defendant No.2 proves that, he had built up two houses, 30 years ago, which bears khata No.140 of Kalgere Grama Panchayath, situated in Gramathana and is in possession and enjoyment of written statement schedule said houses, since 30 years, peacefully, continuously?
8] Whether the suit schedule property is property valued by the plaintiff and court fee paid as per KCF and SV Act?”
5. The aforesaid application has been rejected by the Trial Court by the impugned order dated 13/07/2018 inter alia on the ground that the burden of proving the issue No.1 is on the plaintiff to prove the absolute title and ownership over the suit schedule property. It has further been held that since the defendants have not made any counter claim and not paid the requisite Court Fee, therefore the issue with regard to suit being barred by limitation need not be gone into.
6. The Trial Court has further held that the suit is properly valued and therefore has held that the question of framing the additional issues with regard to the limitation jurisdiction and court fee does not arise.
7. I have heard the learned counsel for the petitioner at length and have perused the records.
8. From a perusal of the application, it is evident that the proposed issue No.5 is necessary to be adjudicated and even in the absence of framing an issue, the Trial Court is under an obligation to examine whether or not the suit is barred by limitation in view of Section 3 of the Limitation Act.
9. Similarly, the Trial Court is required to deal with the issue of pecuniary jurisdiction. However, instead of framing the issues as prayed in the application, the Trial Court by the impugned order has decided the aforesaid issues and has not adverted its attention to the proposed issue No.7 and with regard to issue No.8, it has decided the same, without framing the issue and has held that the reliefs claimed in the suit have been properly valued.
10. The aforesaid approach of the Trial Court by no stretch of imagination can be sustained in the eye of law. The impugned order passed by the Trial Court therefore suffers from an error apparent on the face of the record. The Trial Court ought to have appreciated that the framing of the additional issues was necessary in view of the pleadings of the parties and for just and fair decision of the suit.
11. The impugned order dated 13/07/2018 passed by Trial Court is therefore quashed and set aside and the application filed by the petitioner under Order XIV Rule 5 of the Code is allowed.
Accordingly, the writ petition is disposed of.
BMV* Sd/- JUDGE