Dismissed

Venkanagowda v. Parvatha Gowda Rudragouda

Karnataka HC13 Jun 2019WP/102553/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka disposed of a writ petition challenging the rejection of an application under Order 41 Rule 25 CPC to recast issues. The Court held that the trial court did not err in framing issues that covered the appellant's submissions and was not required to frame additional ones.

What did the court decide?

Writ petition dismissed. Trial Court's order rejecting the application to recast issues is affirmed. No interference warranted.

Venkanagowda Vs Parvatha Gowda Rudragouda — Partition | Karnataka HC (2019)

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THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF JUNE 2019

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BEFORE

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THE HON’BLE MR.JUSTICE S.G. PANDIT

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W.P.NO.102553/2016 (GM-CPC)

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BETWEEN:

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VENKANAGOWDA RUDRAGOUDA DANAPPA GOUDRU, AGED ABOUT: 74 YEARS, OCC: RETIRED PENSIONER AND SOCIAL SERVICE, R/O: JOYISARAKERI, WARD NO.1, HARAPANAHALLI TOWN, DIST: DAVANAGERE.

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JYOTHI D/O: VENKANAGOWDA DANAPPAGOUDRU, AGED ABOUT: 33 YEARS, OCC: ADVOCATE, R/O:HARAPANAHALLI, TQ: HARAPANAHALLI-583131. DIST: DAVANAGERE.

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SMT. MAHESHWARI W/O: SANGAMESH MALIPATIL, AGED ABOUT: 31 YEARS, R/O: KUSTAGI, TQ: KUSTAGI, DIST: KOPPAL.

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KALAPUTHRA VENKANAGOUDA DANAPPAGOUDRU, AGED ABOUT: 29 YEARS, R/O: HARAPANAHALLI, DIST: DAVANAGERE. (PETITIONER NO.1 IS GPA FROM PETITIONER NOS.2 TO 4.) …PETITIONERS

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(BY SRI VENKANAGOWDA R.DANAPPA GOUDRU, PARTY IN PERSON)

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AND:

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PARVATHA GOWDA RUDRAGOUDA DANAPPA GOUDRU, AGED ABOUT: 78 YEARS, OCC: NIL, DUGGAVATTHI VILLAGE, HARAPANAHALLI, DIST: DAVANAGERE. 2. SMT. GANGAWWA @ SHIVAGANGAWWA, W/O; SHRISHAILAPPA PALLEDA, AGED ABOUT: 71 YEARS, OCC: HOUSEHOLD WORK, DUGGAVATTHI VILLAGE, HARAPANAHALLI, DIST: DAVANAGERE. 3. SMT. RATHNAWWA W/O; BASAVANAGOUDA DANAPPAGOWDRU AGED ABOUT: 56 YEARS, OCC: HOUSEHOLD WORK, R/O: KOTHABALA VILLAGE, TQ: RONA, DIST: GADAG. 4. RUDRAGOUDA BASAVANAGOUDA DANAPPAGOUDRU, AGED ABOUT: 32 YEARS, OCC: KSRTC CONDUCTOR, R/O: KOTHABALA VILLAGE, TQ: RONA, DIST: GADAG. 5. MANGALAGOUDA BASAVANAGOUDA DANAPPAGOUDRU, AGED ABOUT: 28 YEARS, OCC: TEACHER, R/O: KOTHABALA VILLAGE, TQ: RONA, DIST: GADAG. 6. SMT. SRIDEVI W/O: VEERANAGOUDA FAKEERAGOUDAR AGED ABOUT: 26 YEARS, OCC: HOUSEHOLD WORK, R/O: HUNASIKATTI VILLAGE, TQ: NARAGUNDA, DIST: GADAG.

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…RESPONDENTS

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO WRIT OF CERTIORARI, SET ASIDE THE ERRONEOUS ORDER OF DISTRICT ADDITIONAL AND SESSIONS JUDGE COURT IN R.A.NO.76/2013 ON 06.02.2016 MADE ON IA.NO.3 (FILE UNDER ORDER 41 RULE 25 OF CPC) VIDE ANNEXURE-K/ORDER SHEET AND ETC.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner party-in-person is before this Court challenging the order dated 06.02.2016 in R.A.No.76/2013 on the file of the Addl. District and Sessions Judge, Gadag, by which IA.No.III filed under Order 41 Rule 25 of CPC is rejected.

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The respondent No.1 filed suit in O.S.No.22/2010 for partition, the petitioner No.1 herein was defendant No.1 in the said suit. After trial, the suit came to be partly decreed. Aggrieved by the said decree, the petitioner No.1 herein who was defendant No.1 filed

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R.A.No.76/2013, before the Prl. District and Sessions Judge, Gadag. In the pending appeal, the petitioner filed IA.No.III under Order 41 Rule 25 of CPC, for recasting the issues. It is stated in the affidavit in support of the application that the trial Court has not properly framed issues based on the pleadings of the parties. As the appellant has not filed application under Order 14 Rule 5 CPC, for additional issues in the suit, it has become necessary for the petitioner to file an application before Appellate Court for recasting of issues. The respondent/plaintiff filed his objections to the said IA denying the allegations made in the affidavit and contended that the application is filed only to delay the proceedings and to drag on the proceedings. The trial Court on considering all the contention of the parties, by order dated 06.02.2016 rejected IA.No.III, filed by the petitioner/defendant No.1. Hence, the

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petitioners are before this Court in this writ petition.

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Heard party-in-person and also perused the writ petition papers.

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The petitioner No.1 party-in-person submits that before the trial Court he had filed written statement which is produced at Annexure-B to the writ petition. The trial Court without looking into the contention raised by petitioner/defendant No.1, has framed issues. He could not file an application for recasting of issues in the suit. Hence, it has become necessary for him to file present application under Order 41 Rule 25 of CPC to recast the issues, which are as follows;

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PÁgÀt FVgÀÄªÀ «ªÁzÀA±ÀUÀ¼À ¸ÀAUÀqÀ: 1. 1£ÉÃ ªÉÄÃ®ä£À«zÁgÀ-1£ÉÃ JzÀÄgÀÄzÁgÀ ªÀÄvÀÄÛ 3£ÉÃ JzÀÄgÀÄzÁgÀ¼À UÀAqÀ ¯ÉÃmï §¸ÀªÀ£ÀUËqÀ EªÀgÀÄ 1986 gÀ°è (¢£ÁAPÀ: 2-10-1986 ¸ÀÜ½ÃAiÀÄªÁV-UÁæªÀÄ¸ÀÜ¼À

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¸ÀªÀÄPÀëªÀÄ ¥Á®Ä«¨sÁUÀ ªÀiÁrPÉÆArgÀÄªÀÅzÀ£ÀÄß ¹zÀÝ ªÀiÁrPÉÆqÀÄvÁÛgÉAiÉÄÃ?

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1£ÉÃ ªÉÄÃ®ä£À«zÁgÀ£ÀÄ-1£ÉÃ ¥ÀæwªÁ¢AiÀÄÄ 1974 jAzÀ 1976gÀ ªÀÄzsÀåzÀ°è 2£ÉÃ JzÀÄgÀÄzÁgÀ¼À-2£ÉÃ ¥ÀæwªÁ¢AiÀÄ ºÉ¸ÀjUÉ D¹ÛPÉÆArgÀÄªÀÅzÀ£ÀÄß ¹zÀÝªÀiÁrPÉÆqÀÄvÁÛgÉAiÉÄÃ?

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On hearing the party-in-person and on going through the writ papers, I am of the view that the order of the trial Court is neither perverse nor erroneous which warrants interference. The trial Court based on the pleadings had framed the following issues;

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Whether the plaintiff proves that, the suit properties are at Sl.Nos.11, 1J and 1K having purchased from the plaintiff’s joint family income in the name of defendant Nos.7 to 9, are the joint family properties?

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Whether the plaintiff further proves that, the suit properties at Sl.Nos.1G, 1H standing in the name of

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the defendant-1 are also purchased from the income of the joint family properties?

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Whether the plaintiff further proves that, the suit properties are at Sl.Nos.1A to 1F are the joint ancestral family properties of the plaintiff and the defendants and they are in joint possession and enjoyment of the same?

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Whether the plaintiff further proves that, he is entitle for his legitimate 1/4^th share in the suit properties by way of partition and separate possession by metes and bounds?

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Whether the plaintiff further proves that, he is entitle for mesne profits in respect of his legitimate 1/1th share in the suit properties?

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Whether the plaintiff is entitle for the reliefs of partition and separate possession and etc., as sought for in the plaint?

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To what order or decree?

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In a suit for partition what are the issues to be framed based on the pleadings, such issues have been framed.

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Based on the above issues, the parties have gone into trial and led evidence. Based on the evidence and arguments advanced by both the parties, the trial Court partly decreed the suit against which the petitioner/defendant No.1 filed R.A.No.76/2013. In the pending regular appeal, the present IA.No.III is filed to recast the issues. The trial Judge on examination of the entire material on record was of the view that the proposed additional issues raised by the petitioner/defendant No.1 are not necessary for deciding the pending appeal. It is observed that the issues already framed covers the issues now sought to be raised by the petitioner/defendant No.1.

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8. Order 41 Rule 25 CPC, reads as follows;

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Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from. – Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of act, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; And such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefore [within such time as may be fixed by the Appellate Court or extended by it from time to time].

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A careful reading of the above provision makes it clear that, the Appellate Court if it is of the opinion that the Court from which appeal is preferred has omitted to frame any issue, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and direct the Court to take additional evidence required. Hence, I am of the view that the trial Court has rightly rejected IA.No.III and no ground is made out by the petitioners to interfere with the order under Article 227 of the Constitution of India. However, it is made clear that, at the time of final disposal of the appeal, if the Appellate Court were to come to the opinion that the trial Court has failed to frame proper issues, it is open for the Appellate Court to frame such additional issues and remand the matter to the Court from whose decree the appeal is preferred.

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With the above observation, the writ

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petition is disposed of.

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Sd/JUDGE

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msr

Venkanagowda v. Parvatha Gowda Rudragouda

Case brief

What is this about?

What did the court decide?

Venkanagowda v. Parvatha Gowda Rudragouda

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

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