Allowed

Smt Satyabhama W/O Motiram Bandiwaddar v. Shri Halappa S/O Kallappa Gopali

Karnataka HC26 Aug 2021WP/108711/2017

Case brief

AI extract

What is this about?

Single judge of Karnataka High Court dismissed writ petition challenging impugned order of trial Court. Court set aside order, directed trial to proceed on merits including Issue No.5, and fixed time limit.

What did the court decide?

Impugned order dated 11.07.2017 set aside; trial Court directed to decide suit on merits including Issue No.5 within nine months.

Smt Satyabhama W/O Motiram Bandiwaddar Vs… — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 26^TH DAY OF AUGUST, 2021

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BEFORE

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

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WRIT PETITION NO.108711 OF 2017 (GM-CPC)

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BETWEEN

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SMT. SATYABHAMA, W/O. MOTIRAM BANDIWADDAR, AGE: 53 YEARS, OCC: HOUSEHOLD WORK, R/O: RAMAPUR, TAL: JAMKHANDI, DIST: BAGALKOT.

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…PETITIONER

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(BY SRI. ANAND R. KOLLI, ADVOCATE)

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AND

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SHRI. HALAPPA, S/O. KALLAPPA GOPALI, AGE: 41 YEARS, OCC: AGRICULTURE, R/O: YARAGATTI, TAL: JAMKHANDI, DIST: BAGALKOT.

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SHRI. SANNALAXMAN, S/O. DURGAPPA BANDIWADDAR, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: RAMAPUR, TAL: JAMKHANDI, DIST: BAGALKOT.

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SMT. BHAGAWWA, W/O. SANNALAXMAN BANDIWADDAR, AGE: 49 YEARS, OCC: HOUSEHOLD WORK, R/O: YARAGATTI, TAL: JAMKHANDI, DIST: BAGALKOT. 4. SHRI. SUBHAS ALIAS GUNDU, S/O. SANNALAXMAN BANDIWADDAR, AGE: 30 YEARS, OCC: COOLIE, R/O: YARAGATTI, TAL: JAMKHANDI, DIST: BAGALKOTE. 5. SMT. SHANTA, W/O. VASANT GADIWADDAR, AGE: 29 YEARS, OCC: AGRICULTURE, R/O: YARAGATTI, JAMAKANDI, DIST: BAGALKOT. 6. SHRI. RAVI, S/O. SANNALAXMAN BANDIWADDAR, AGE: 28 YEARS, OCC: COOLIE, R/O: YARAGATTI, TAL: JAMKHANDI, DIST: BAGALKOT. 7. KUMAR, S/O. SANNALAXMAN BANDIWADDAR, AGE: 20 YEARS, R/O: YARAGATTI, TAL: JAMKHANDI, DIST: BAGALKOT. ... RESPONDENTS (BY SRI. MRUTYUNJAYA TATA BANGI, ADV. FOR R1 TO R7) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH

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THE IMPUGNED ORDER DATED 11.07.2017 ON ISSUE NO.5 IN O.S.NO.30/2010 PASSED BY THE HON'BLE CIVIL JUDGE (JR.DN.), BANAHATTI DISTRICT, BAGALKOT AND THE SAME IS HEREWITH PRODUCED AND MARKED AS ANNEXURE-K AND ISSUE A NECESSARY DIRECTION TO THE HON'BLE CIVIL JUDGE (JR.DN), BANAHATTI TO RECORD AN EVIDENCE ON ISSUE NO.5 IN O.S.NO.30/2010.

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THIS WRIT PETITION COMING ON FOR ORDERS , THIS DAY, THE COURT, MADE THE FOLLOWING:

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ORDER

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This petition is directed against the impugned order dated 11.07.2017 passed on issue No.5 in O.S.No.30/2010 by the Civil Judge, Banahatti,

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whereby the trial Court answered issue No.5 in the negative by passing the impugned order.

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Heard learned counsel for the petitioner,

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learned counsel for the respondents and perused the material on record.

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The material on record indicates that in the aforesaid suit filed by respondent No.1 against the petitioner and other respondents, the petitioner herein was arrayed as defendant No.1. After

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completion of the pleadings, trial Court framed eight issues including issue No.5 with regard to whether the suit was barred under Order II Rule 2 of CPC as contended by petitioner / defendant No.1. After hearing the parties, the trial Court proceeded to pass the impugned order answering issue No.5 in the negative against the petitioner / defendant No.1, who is before this Court by way of the present petition.

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Though several contentions have been urged by both side with regard to their respective claims, the material on record indicates that issue No.5 in relation to the bar under Order II Rule 2 of CPC as contended by the petitioner / defendant No.1 is essentially a mixed question of fact and law, which has to be decided necessarily after trial along with all other issues. Under these circumstances, without expressing any opinion on the merits / demerits of the rival contentions on all issues including issue No.5, I deem it just and appropriate to dispose of this

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petition by setting aside the impugned order and by issuing certain directions.

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In the result, I pass the following:

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ORDER

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(i) The impugned order dated 11.07.2017 passed on issue No.5 in O.S.No.30/2010 by the Civil Judge, Banahatti, is hereby set aside.

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(ii) The trial Court is directed to decide the suit on merits by recording findings on all issues including issue No.5 without being influenced by the observations and findings recorded in the impugned order.

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(iii) All rival contentions of the parties are kept open and no opinion is expressed on the same.

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(iv) The trial Court is directed to dispose of the suit as stated supra, as expeditiously

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as possible and preferably within a period of nine months from the date of receipt of copy of this order.

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Subject to the aforesaid directions, petition stands disposed of.

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SD JUDGE

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Smt Satyabhama W/O Motiram Bandiwaddar v. Shri Halappa S/O Kallappa Gopali

Case brief

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Smt Satyabhama W/O Motiram Bandiwaddar v. Shri Halappa S/O Kallappa Gopali

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