IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA WRIT PETITION NO.14658/2017(GM-CPC) BETWEEN:
T.R.RAJASHEKAR SINCE DEAD BY L.Rs.
1. AKKAMAHADEVI W/O LATE T.R.RAJASHEKAR AGED ABOUT 68 YEARS 2. T.R.RAGHU S/O LATE RAJASHEKHAR AGED ABOUT 43 YEARS 3. T.R.JAGADEESH S/O LATE RAJASHEKHAR AGED ABOUT 40 YEARS ALL ARE R/AT:
NEAR PARK, K.R.EXTENSION, TIPATURU, TUMAKURU DISTRICT-572 201.
4. T.R.MAMATHA D/O LATE RAJASHEKHAR AGED ABOUT 38 YEARS R/AT: BEHIND INDIAN OIL PETROL BUNK, VIDYANAGARA, TIPATURU, TUMKURU DISTRICT-572 201 ... PETITIONERS (BY SRI. S.N.BHAT, ADVOCATE) AND:
G.V.AMARENDRA KUMAR S/O G.S.VISHWANATHASETTY AGED ABOUT 76 YEARS CLOTH MERCHANTS DODDAPETE, TIPATURU TUMAKURU-572 201.
(BY SMT R.VARSHA IYENGAR, ADV., ...RESPONDENT FOR SRI K.S.RAMASWAMY IYENGAR, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDERS PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, TIPTURU IN O.S.NO.3/2010 ON I.A.NO.8 DATED 30.03.2017 (ANNEXURE-F) AND ALLOW THIS WRIT PETITION.
THIS WRIT PETITION COMING ON FOR PRLY. HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioners herein are defendant Nos.2(a), 3, 4 and 5 in O.S.No.3/2010, which is pending on the file of the Senior Civil Judge at Tiptur. That suit has been filed by the respondent/plaintiff seeking judgment and decree against defendant Nos.1 and 2 for a sum of Rs.25,80,000/- along with interest and costs. On completion of pleadings, the trial Court framed issues in the suit on 09.02.2011. Issue No.4 was framed as under:
“The plaintiff firm being a moneylender has not complied the mandatory provisions of Sections 20 and 21 of KML Act?”
2. The petitioners herein filed an application seeking to consider Issue No.4 as a preliminary issue. By the impugned order dated 30.03.2017, the said application has been dismissed thereby recasting Issue No.4 as under:
“Whether the defendant proves that, the plaintiff is professional moneylender and he has not complied with mandatory provision of Money Lending Act?”
Being aggrieved by the dismissal of the application and recasting of the aforesaid issue, this writ petition has been filed.
3. I have heard learned counsel for the petitioners and learned counsel for the respondent and perused the material on record.
4. It is noted from the pleadings that the petitioners herein have raised a specific issue with regard to the applicability of the Karnataka Money Lenders’ Act, 1961 (for short ‘the Act’) and more particularly, Sections 20 and 21 of the said Act. In that view of the matter, Issue No.4 as extracted above was framed. The petitioners sought for consideration of that issue as a preliminary issue. The trial Court has found that the said issue cannot be considered as a preliminary issue and that the said issue would be considered along with other issues and from the issue raised before the trial Court it becomes clear that the defendants seek to non-suit the plaintiff on account of non-compliance of Sections 20 and 21 of the Act. But, in order to do so the trial Court would have to first consider as to whether the said Act applies at all to the facts and circumstances of the case for which evidence would have to be let in. Therefore, the trial Court was justified in holding that Issue No.4 cannot be considered out of turn for the purpose of considering it as a preliminary issue and that the said issue would have to be considered along with other issues after recording of evidence. The trial Court has also in its wisdom has thought of recasting the said issue as extracted above so as to give a clarity and make it more meaningful. Recasting of issue has in no way departed from what had been cast by order dated 09.02.2011. Therefore, the petitioners herein cannot have any grievance with regard to the dismissal of the application and recasting of the said issue. There is no infirmity in the order of the trial Court. However, it is observed that while deciding the suit, the trial Court may consider Issue No.4 as a preliminary issue and thereafter proceed to consider the other issues, if necessity arises.
Subject to the aforesaid observations and directions, the writ petition is dismissed.
Sd/-
JUDGE