Allowed

Mahadevappa v. Shivanna

Karnataka HC13 Nov 2019CRP/113/2016

Case brief

AI extract

What is this about?

This civil revision petition challenged a lower court order treating a limitation issue as a preliminary. The High Court held that since the issue involved mixed questions of fact and law, it could not be decided as a preliminary issue under Order 14 Rule 2 CPC and set aside the lower court's order.

What did the court decide?

The revision petition was allowed, the impugned order set aside, and the trial court directed to decide the additional issue regarding limitation along with other issues on merits.

Mahadevappa Vs Shivanna — Civil Procedure and Limitation | Karnataka HC (2019)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 13^TH DAY OF NOVEMBER, 2019

¶4

BEFORE

¶5

THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR

¶6

CIVIL REVISION PETITION No.113 OF 2016(RES)

¶7

BETWEEN:

¶8

MAHADEVAPPA

¶9

S/O LATE PUTTAPPA AGED ABOUT 64 YEARS.

¶10

MAHADEVASWAMY

¶11

S/O MAHADEVAPPA AGED ABOUT 27 YEARS BOTH PETITIONERS ARE RESIDING AT MANIKYAPURA VILLAGE MARAGODAHALLI POST YELAWALA HOBLI MYSURU TALUK MYSURU DISTRICT – 571 130.

¶12

... PETITIONERS

¶13

(BY SMT.DEEPASHREE, ADVOCATE)

¶14

AND:

¶15

SHIVANNA S/O LATE BASAPPA AGED ABOUT 65 YEARS R/A BOMMENAHALLI VILLAGE YELAWALA HOBLI MYSURU TALUK MYSURU DISTRICT – 571 130.

¶16

…RESPONDENT

¶17

(BY SRI. M.CHIDANANDA KUMAR, ADVOCATE)

¶18

THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED: 02.12.2015 PASSED IN OS.NO. 406/2013 ON THE FILE OF THE ADDL.II CIVIL JUDGE, MYSURU, ORDER THAT THE SUIT IS NOT BARRED BY LIMITATION.

¶19

THIS PETITION COMING ON FOR ADMISSION THIS DAY, COURT MADE THE FOLLOWING:-

¶20

¶21

ORDER

¶22

Heard the learned counsel appearing for both the

¶23

parties.

¶24

The matter is admitted for hearing.

¶25

With the consent of learned counsel for the parties, the matter is taken up for final disposal.

¶26

The petitioners were the defendants on the file of II Addl. Civil Judge, Mysuru in a suit namely, O.S.No.406/2013 filed by the respondent-plaintiff for recovery of a sum of Rs.3 lakhs together with interest at 2% per month and for other reliefs.

¶27

In the court below, the petitioners filed their written statement and contested the suit.The court below framed the six issues vide order dated 24.11.2014. Subsequently, the court below framed the additional issue on 27.03.2015, which reads as under:-

¶28

“Whether the suit is barred by law of limitation?”

¶29

¶30

The learned trial judge came to the conclusion that having regard to an alleged admission made by the respondent (PW-1) in his cross-examination, the said additional issue is to be treated as a preliminary issue.

¶31

After hearing the parties, the learned trial Judge came to the conclusion that having regard to the material on record including the pleading and evidence, the suit was not barred by limitation and accordingly, the Court below passed the impugned order and answered the additional issue No.1 in the ‘negative’ in favour of the respondents. This order is under challenge in the present revision petition.

¶32

I have heard the learned counsel for the petitioners as well as the learned counsel for the respondent.

¶33

It is contended on behalf of the petitioners that the Court below committed an error in dealing with the additional issue regarding limitation as a preliminary issue, in as much as in the facts and circumstances of the case, the issue regarding limitation was a mixed question of fact and law, it could not

¶34

¶35

have been treated as a preliminary issue under the provisions contained in Order 14 Rule 2 CPC.

¶36

My attention is invited to the Order 14 Rule 2 of CPC,

¶37

which reads as follows:-

¶38

ORDER XIV

¶39

SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON ISSUES OF LAW OR ON ISSUES AGREED UPON

¶40

Framing of issues.- [ xxxxxxx]

¶41

Court to pronounce judgment on all issues,- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.

¶42

(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-

¶43

(a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force,

¶44

and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.

¶45

11. It is now well settled that unless any issue

¶46

framed/that arises for consideration before the Court is a pure

¶47

¶48

issue of law relating to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force, the said issue cannot be treated as a preliminary issue. It is also well settled that issues giving rise to mixed questions of fact and law cannot be treated as a preliminary issue within the meaning of Order 14 Rule 2 of CPC.

¶49

In the instant case, it is not in dispute that according to the respondent-plaintiff, the suit is well within time and not barred by limitation. The said question of fact with regard to the suit being barred by limitation has been seriously disputed by the petitioners. The parties are also in dispute with regard to the particular provision of the Limitation Act which applies to their respective contentions.

¶50

Under these circumstances, having regard to the rival contentions insofar as the period of limitation as well as the relevant provisions of the Limitation Act are concerned, mixed questions of fact and law arises for consideration in the instant case. An issue regarding limitation in relation to adjudicating upon these mixed questions of fact and law could

¶51

¶52

not have been treated as a preliminary issue under the provisions contained in Order 14 Rule 2 of CPC.

¶53

The Court below has misdirected itself in taking up and dealing with the additional issue regarding limitation as a preliminary issue without noticing that having regard to the facts of the case on hand, which gave rise to mixed questions of fact and law, the issue regarding limitation could not have been treated as a preliminary issue. The impugned order passed by the Court below indicates that the learned trial Judge has acted illegally and with material irregularity in exercise of his jurisdiction, which warrants interference under the provisions contained in Section 115 of CPC.

¶54

Accordingly, I pass the following order:-

¶55

(i) The revision petition is allowed.

¶56

(ii) The impugned order dated 02.12.2015 passed by the learned II Addl. Civil Judge, Mysuru, in O.S.No.406/2013 is hereby set aside.

¶57

(iii) The Court below is hereby directed to decide the additional issue framed on 27.03.2015 regarding limitation

¶58

¶59

along with other issues framed in the suit and pass an order on merits after giving equal opportunity to both sides.

¶60

(iv) Both the parties are at liberty to adduce further

¶61

evidence of their respective sides.

¶62

(v) All rival contentions of the parties are left open.

¶63

No costs.

¶64

Sd/JUDGE

¶65

Srl.

Mahadevappa v. Shivanna

Case brief

What is this about?

What did the court decide?

Mahadevappa v. Shivanna

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt.Neetu Jain Vs Sri.B.v.Lakshminarayana

Sri K C Srinivas Vs Sri P v Lokaiah

Sri P Sunil Prithviraj Vs G Prithviraj

Sri. B N Shivakumar Vs Puttalingaiah

Thimmappagowda Vs Partha

General Manager Vs Shanthamma