Allowed

Sri T N Thimmarajachar v. Sri K R Sathyanarayana

Karnataka HC11 Jan 2022WP/8980/2021

Case brief

AI extract

What is this about?

In a writ petition under Article 226, the Karnataka High Court quashed an impugned order rejecting a Civil Court's application to frame additional issues, holding that the trial Court failed its statutory duty under Order 14 CPC to frame all factual and legal issues.

What did the court decide?

The impugned order rejecting the application to frame additional issues was quashed under Article 226 of the Constitution of India.

Sri T N Thimmarajachar Vs Sri K R Sathyanarayana — Property and Title | Karnataka HC (2022)

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W.P.No.8980/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF JANUARY 2022

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL R

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WRIT PETITION No.8980/2021 (GM-CPC)

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BETWEEN :

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SRI T N THIMMARAJACHAR S/O LATE NARASIMHACHAR AGED ABOUT 54 YEARS R/AT NO.491, 14^TH MAIN ROAD 1^ST CROSS, SBM COLONY SRINIVASANAGAR, BSK 1^ST STAGE BENGALURU - 560 050 ….PETITIONER

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(BY SRI J S SOMASHEKARA, ADVOCATE FOR SRI K S MALLIKARJUNAIAH, ADVOCATE)

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AND :

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SRI K R SATHYANARAYANA S/O K V RAMASWAMY AGED ABOUT 59 YEARS

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SMT. K S DAKSHYAINI W/O K R SATHYANARAYANA AGED ABOUT 55 YEARS

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BOTH ARE R/AT NO.905/85 4^TH MAIN ROAD, 5^TH CROSS VIDYARANYAPURAM MYSURU - 570 008.

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SRI C R GOPALAKRISHNA S/O RAMASHETTY AGED ABOUT 63 YEARS R/AT NO.751, 5^TH CROSS 2^ND BLOCK, BSK 1^ST STAGE BENGALURU-560 050.

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W.P.No.8980/2021

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VISHWABHARATHI HOUSE BUILDING CO-OPERATIVE SOCIETY LTD., OFFICE AT NO.35 RATHNAVILAS ROAD BASAVANAGUDI BENGALURU - 560 004 REP. BY ITS SECRETARY. ...RESPONDENTS

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(BY SRI H S CHANDRASHEKAR, ADVOCATE FOR R1 AND 2; DR. M SUNIL SASTRY, ADVOCATE FOR R3; SRI M V VEDAMURTHY, ADVOCATE FOR R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 23.04.2021 AND ALLOW IA. NO.9/2021 IN O.S.NO.374/2016 ON THE FILE OF THE LXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-67) AT BENGALURU VIDE ANNEXURE-A.

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THIS WRIT PETITION COMING ON FOR FURTHER HEARING, THIS DAY THROUGH VC THE COURT MADE THE FOLLOWING:

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O R D E R

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Aggrieved by the rejection of his application in IA No.9

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under Order 14 Rule 1 and 5 CPC, the plaintiff in OS No.374/2016 on the file of the LXVI Additional City Civil and Sessions Judge , Bengaluru City, has preferred this petition.

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The petitioner filed OS No.374/2016 against the respondents for permanent injunction to restrain them or anybody claiming through them from interfering with his peaceful possession and enjoyment of the suit schedule property. The subject matter of the suit is site bearing

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W.P.No.8980/2021

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No.986 in 4^th Phase of Vishwabharathi Housing Complex

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Layout, Girinagar, Bengaluru, measuring 30 feet x 50 feet.

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3. The petitioner’s case in brief is as follows:

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That he is the member of the 4^th respondent- Society

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and on his application, suit site was allotted to him. He paid Rs.60,000/- on 11-8-1995 by way of two cheques of Rs.30,000/- each and Rs.20,000/- by cash on 17-3-2002. He paid Rs.2,00,000/- to the President of the Society though the initial price fixed was only Rs.60,000/-. The Society issued him possession certificate on 10-8-1996 and put him in possession. Assigning site No.928 to the same site, on 20-6-2003 the Society sold the same to one Sudha Acharya. He filed O.S. No.805/2004 against Sudha Acharya and 4^th defendant-Society –Vishwabharathi House Building Cooperative Society Limited, for permanent injunction. That suit was decreed. Thereafter, on 30-11-2007 he issued notice to defendant No.4-Society calling upon to execute the sale deed. Defendant No.4 issued reply dated 10-12-2007 claiming Rs.4,000/- per sq. ft. as sale consideration. He raised dispute before the Registrar of Co-operative Societies

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W.P.No.8980/2021

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in JRBMD-89/2007-08. Pending said proceeding, defendant No.4 again sold the same site to defendant No.3 assigning site No.389. Defendant No.4 also sold site to Meera Priyadarshini, who in turn sold that to P. Gajendra assigning site No.977 to the said site. P. Gajendra sold the site on 30-11-2013 to defendant No.3. Society indulged in malpractices manipulating the documents, therefore, allottees filed W.P.No.6945/2008 against the Society and others. This Court disposed of the said writ petition directing the Society to prepare the Seniority List of the Members of the Society and allot them the sites. Respondent No.3 and another filed O.S.No.2570/2014 against the plaintiff and others for permanent injunction. They withdrew that suit on 2-7-2015. On 17-7-2015 defendant No.3 sold the property to defendant Nos. 1 and 2 based on said document, defendants are obstructing the peaceful possession. Hence, he sought for permanent injunction.

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Defendants contested the suit disputing the plaintiff’s claim or his eligibility to purchase the same. They

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W.P.No.8980/2021

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disputed the plaintiff’s possession of the property. They claimed that Society had allotted a site to the wife of the petitioner, therefore, he is not entitled to any further site. They claim that the suit for bare injunction without seeking declaration is not maintainable and suit is hit by Section 70 of the Karnataka Co-operative Societies Act. They also disputed his entitlement to seek permanent injunction. They disputed the identity of the property also.

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In the suit, the petitioner filed application for temporary injunction. The trial Court rejected the said application. The petitioner challenged that order before this Court in MFA No.1329/2016 (CPC). In that appeal, this Court granted an interim order against the respondents restraining them from putting up any further construction till further orders of the Court in the appeal. This Court disposed of that appeal by order Annexure F2 dated 06.01.2021, directing the trial Court to dispose of the suit within three months from the date of receipt of the copy of the order. In that order, it was held, interim order dated

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W.P.No.8980/2021

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31-3-2016 directing no further construction on the suit

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schedule property shall continue to remain in force.

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When that MFA was pending, the trial Court in

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the suit framed the following three issues as preliminary issues:

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“(i) Whether the suit as brought for the relief of bare injunction without the relief of declaration is maintainable?

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(ii) Whether to seek the relief of declaration now, the same is hit by limitation?

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(iii) Whether there is cause of action to the suit?”

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Trial Court directed that the plaintiff shall go on with

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the suit only on those three issues.

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After disposal of MFA 1329/2016 petitioner filed

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IA No.9 as per Annexure-E under Order XIV Rules 1 and 5

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CPC requesting the trial Court to frame the following additional issues:

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“ (i) Whether the plaintiff proves that he is in lawful possession of the schedule property as on the date of suit?

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(ii) Whether plaintiff proves the defendants are unlawfully interfering with his possession and enjoyment of the suit property?

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(iii) Whether the plaintiff is entitled to the relief sought in this suit?”

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W.P.No.8980/2021

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The petitioner contended that in the suit for bare injunction the proposed issues are necessary and proper issues. That application was contested by respondent Nos. 1, 2 and 4. They defended the action of the trial Court in framing Preliminary Issues and setting up the matter for trial on the Preliminary Issues.

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The trial Court on hearing both side by impugned order Annexure-A rejected the said application holding that the question of framing the other issues arise only if the plaintiff succeeds in convincing the Court on the Preliminary Issues which are the questions of law.

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Submissions of learned counsel for petitioner:

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Order XIV Rules 1, 2 and 5 of CPC require the Court to frame all the issues which arise in the suit. Only thereafter, if the Court finds that any issue involves pure question of law, Court can hear such issue as preliminary issue. But the Court cannot postpone or defer framing of issues which arise in the suit.

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W.P.No.8980/2021

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In support of his submissions, he relied on the

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following judgments:

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(i) Veeragouda and others Vs. Shantakumar @ Shantappagowda.¹

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(ii) Rajendra Prasad Vs. B.H. Krishna.²

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(iii) B. Krishnaprasad Vs. Bhagyamma and others.³

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(iv) O. Leelavathi and others Vs. M. Neelakanta Naidu and others.⁴

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Submissions of counsel for respondents:

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When the suit itself is not maintainable, the Court rightly framed only issues relating to maintainability of the suit and directed the plaintiff to proceed with the suit only on said issues. Therefore, the impugned order does not suffer any jurisdictional error.

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In support of their submission, they relied on the following judgments:

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(i) Prithvi Raj Jhingt a and another Vs. Gopal Singh and another.⁵

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(ii) Sunni Central Waqf Board and others Vs. Gopal Singh Vishrad and other.⁶

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1 ILR 2009 KAR 887

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2 2019 (3) KCCR 2549

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3 W.P.No.4105/2015 DD 27-6-2019

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4 2006(6) AIR Kar.R.119.

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5 AIR 2007 Himachal Pradesh 11

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6 AIR 1991 Allahabad 89

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(iii) Manicklal Verma and another Vs. Jamunadevi and others.⁷

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(iv) Anathula Sudhakar Vs. P. Buchi Reddy (dead) by LRs. And others.⁸

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Having regard to the rival submissions and the materials on record the question that arises for consideration is “ whether the impugned order suffers jurisdictional error and illegality ?”

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Framing of issues in a suit is governed by Order XIV Rules 1, 3 and 4 CPC. The power of the Court to pronounce the judgment on Preliminary Issue or on all issues is governed by Order XIV Rule 2 CPC. The power of the Court to amend or strike out issues is governed by Order XIV Rule 5 CPC. Order XIV Rule 1, Sub-Rule (1) of CPC which, is material for the purpose of this case, reads as follows:

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“ O.XIV R.1. Framing of issues:- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.”

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7 2002 (4) Kar.L.J.400

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8 2008 AIR SCW 2692

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W.P.No.8980/2021

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The reading of Order XIV Rule 1 Sub-Rule 1 of CPC shows that the issues in the suit arise the moment the material proposition of fact or law is affirmed by the one party and denied by other party.

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Order XIV Rule 1 Sub-Rule 5 says on the first hearing of the suit, after reading the plaint and the written statements, after examination of the parties under Order X Rule 2 CPC and after hearing the parties, the Court shall proceed to frame and record issues on which the right decision of the case depends.

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Order XIV Rule 2 which deals with the pronouncement of judgment on all the issues reads as follows:

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“2. Court to pronounce judgment on all issues –

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

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(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 –

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(a) the jurisdiction of the Court, or

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

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W.P.No.8980/2021

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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.”

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As per the above provisions rule is that the Court shall pronounce the judgment on all issues. Sub Rule 2 is an exception to Rule 1 of Order XIV Rule 2. The said rule confers discretion on the Court that if issues both of law and fact arise and the Court is of the opinion that the suit can be disposed of only on the issues of law, to try such issues as Preliminary issues. The issues relating to jurisdiction of the Court or bar of the suit by any law are the issues of law.

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The reading of the above two provisions i.e. Order XIV Rules 1 and 2 show that issues arise the moment pleadings are completed. Therefore, the Court has a duty to frame all such issues. Only discretion available to the Court is to postpone the trial of the issues involving the question of facts and set down the issues involving pure question of law for hearing as the Preliminary issues.

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W.P.No.8980/2021

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The Presiding Officer of the trial Court in paragraph 19 of the order on biographical reference of her experience states as follows:

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“19. With respect the affidavit averments in support of the present application in respect of framing proper issues, the presiding officer of this Court being put in 18 years of service in different capacities as Civil Judge, Senior Civil Judge and as a District Judge knows well that in a suit for bare injunction, the Court has to see only the lawful possession of the plaintiff over the suit property and the alleged interference and thus, the proper issues for consideration are;

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Whether plaintiff proves his lawful possession over the suit property?

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Whether the plaintiff further proves the alleged interference by the defendants over his lawful possession of the suit property?

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What order or decree?

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at the same time, she also knows that the complicated issues cannot be decided/ adjudicated in a suit for injunction simplicitor and when the defendants deny the title of the plaintiff over the suit

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property, either the plaintiff gets his suit amended for declaration or the Court has to relegate the parties to go for a comprehensive suit for declaration as noted above, thus, raised the preliminary issues Nos. 1 to 3.”

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The above paragraph itself goes to show that the trial Court was convinced that the proposed issues do arise in the suit. But still rejects the application on the ground that it considers framing of such issues only after plaintiff proceeds with the matter on the Preliminary issues framed by it.

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The Hon’ble Supreme Court in para 10 of the judgment in Sejal Glass Limited Vs. Navilan Merchants Private Limited⁹ while considering when the Court can set down an issue for hearing as a preliminary issue held as follows:

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“ 10. xxxxxxxxxx

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The Court is vested with a discretion under this order to deal with an issue of law, which it may try as a preliminary issue if it relates to the jurisdiction of the Court, or is a bar to the suit created for the time being in force. Obviously, this provision would apply after issues are struck i.e. after a

9 (2018) 11 SCC 780

W.P.No.8980/2021

written statement is filed. This provision again cannot come to the rescue of learned counsel for the respondent.”

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(Emphasis supplied)

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The reading of the above judgment shows that order XIV Rule 2 applies only after framing the issues as contemplated under order XIV Rule 1 of CPC. Failure to frame all issues that arise in the suit would be an utter ignorance of the legal implications and an utter failure on the part of the court in discharging its duty enjoined upon it by law.

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There cannot be any lis without issues. Because of the issues there would be trial by the Court in which the parties would be called upon to produce evidence and Court will decide the matter. In that background, failure to frame the issues not only amounts failure to exercise judicial duty enjoined upon by the trial Court, but also a travesty of justice to be expended to the parties in its letter and spirit.

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In the judgment in Rajendra Prasad’s case referred to supra, this Court held that in a suit for bare

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injunction, even if the objections regarding maintainability are raised for want of relief of declaration, the Court is required to frame an appropriate issue for determination of all the matters in controversy.

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Having regard to the authoritative judgment of the Supreme Court in Sejal Glass Limited’ s case and the judgment of this Court in Rajendra Prasad’s case, the judgments relied on by learned counsel for the respondent do not serve their contentions.

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In the light of the above legal position, it was mandatory for the Trial Court to frame all the issues arising in the suit. When certain issues arise in the case, the Court has no power or discretion to postpone the framing of such issues holding that first it frames only the issues of law and only after the trial is concluded on such issues of law, it frames the other issues. The trial Court despite holding that the proposed issues do arise in the case declines to frame such issues. The impugned order is vitiated by jurisdictional error and liable to be quashed. Therefore, the petition is allowed.

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W.P.No.8980/2021

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The impugned order is hereby quashed.

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I.A.No.9 filed by the petitioner under Order XIV Rules

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1 and 5 CPC is allowed.

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The trial Court shall frame the issues proposed in para 12 of the affidavit filed in support of I.A.No.9 as additional issues. After framing such issues, it is open to the trial Court to proceed in accordance with Order XIV Rules 1 and 2 of CPC.

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In view of the disposal of the writ petition,

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I.A.No.1/2021 and I.A.No.3/2021 stand disposed of.

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Sd/JUDGE

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tsn*

Sri T N Thimmarajachar v. Sri K R Sathyanarayana

Case brief

What is this about?

What did the court decide?

Sri T N Thimmarajachar v. Sri K R Sathyanarayana

Case brief

What is this about?

What did the court decide?

What the court decided

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