Allowed

Smt Sabeeha Parveen v. Sri Javed Ahmed

Karnataka HC4 Dec 2024WP/55352/2016

Case brief

AI extract

What is this about?

Plaintiff challenged rejection of her application to frame additional issues on the counter claim filed by defendant 5. The High Court held that where such pleas are raised in reply to the counter claim, framing issues is obligatory; it set aside the Trial Court's order and directed framing of the proposed issues.

What did the court decide?

Impugned order set aside; Trial Court directed to frame the four proposed additional issues with contentions left open.

Smt Sabeeha Parveen Vs Sri Javed Ahmed — Civil Procedure and Limitation | Karnataka HC (2024)

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1 - NC: 2024:KHC:50037 WP No. 55352 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE N S SANJAY GOWDA WRIT PETITION NO. 55352 OF 2016 (GM-CPC)

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BETWEEN:

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SMT SABEEHA PARVEEN W/O ABDUL KHYUM, AGED ABOUT 61 YEARS, R/AT NO. 195, 2ND MAIN ROAD, 8^TH CROSS, ILYASNAGAR, J.P.NAGAR POST, BANGALORE - 560 078. REP. BY PA HOLDER ABDUL KHYUM.

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…PETITIONER

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(BY SRI. S. GURUPRASANNA., ADVOCATE)

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AND:

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Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA

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SRI JAVED AHMED ALIAS TALWAR ZAVID, FATHERS NAME NOT KNOWN TO THE PETITIONER, AGED ABOUT 51 YEARS, J.J.AUTOMOBILES, NO. 51, SIDDAIAH ROAD, BANGALORE - 560 027.

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SRI M B RAMACHANDRAN S/O LATE BYRAPPA, AGED ABOUT 80 YEARS, SINCE DEAD BY LRs.,

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2(a) SMT.M.HEMALATHA., W/O LATE M.B.RAMCHANDRAN, AGED ABOUT 74 YEARS, R/AT No.55, NANDIDURGA ROAD, BENGALURU-560 046.

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2 - NC: 2024:KHC:50037 WP No. 55352 of 2016

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2(b) SRI. R.PRAVEEN, S/O LATE M.B.RAMCHANDRAN, AGED ABOUT 52 YEARS, R/AT No.55, NANDIDURGA ROAD, BENGALURU-560 046.

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2(c) SMT. PAVITHRA.R., D/O LATE M.B.RAMCHANDRAN, W/O Y.SURENDRA, AGED ABOUT 55 YEARS, R/AT No.55 NANDIDURGA ROAD, BENGALURU-560 046. ALSO AT No.33, 13^TH CROSS, AECS LAYOUT, SANJAY NAGAR, BENGALURU-560 094.

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2(d) SMT. PALLAVI.R., D/O LATE M.B.RAMCHANDRAN, AGED ABOUT 50 YEARS, R/AT No.55 NANDIDURGA ROAD, BENGALURU-560 046.

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SRI G S SRINIVASA GUPTA FATHERS NAME NOT KNOWN TO THE PETITIONER, AGED ABOUT 61 YEARS, R/AT 45, K.KAMARAJ ROAD, BANGALORE.

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SRI AYUB KAREEM SAIT M S/O LATE A KAREEM SAIT, AGED ABOUT 64 YEARS, R/AT NO. 21, 1^ST CROSS, RAJAPPA BLOCK, MUNIREDDY PALYA, BANGALORE - 560 046.

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SRI R NAZIR AHMED S/O ABDUL RAZAK, AGED ABOUT 77 YEARS, R/AT NO. 17, R.N.A.HOUSE, 3^RD CROSS, SESHADRI ROAD,

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3 - NC: 2024:KHC:50037 WP No. 55352 of 2016

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MARAPPA GARDEN, BENSON TOWN, BANGALORE.

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…RESPONDENTS (BY SRI. H R ANANTHA KRISHNAMURTHY., ADVOCATE FOR R-2(A TO d) AND R-5; R-1 SERVED;

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VIDE ORDER DATED:16.08.2022, NOTICE TO R-3 AND R-4 ARE DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER OF THE XIV ADDL. CITY CIVIL JUDGE, BANGALORE IN O.S.8352/2010 ON I.A.14 UNDER ORDER XIV RULE 5, READ WITH SECTION 151 OF CPC DATED 24.09.2016 AT ANNEXUREA TO THE PETITIONER, ALLOW THE I.A.14, ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE N S SANJAY GOWDA

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ORAL ORDER

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This writ petition is filed challenging the order, by which, the Trial Court has rejected the request of the plaintiff to frame additional issues.

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The petitioner is the plaintiff who had filed a suit for injunction and originally the Trial Court had framed issues only in relation to the question of possession

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i.e., as to whether the plaintiff proved lawful

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NC: 2024:KHC:50037 WP No. 55352 of 2016

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possession and whether she proved interference by the defendants.

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In this suit, the 5^th defendant entered appearance and raised a counter claim and in light of the counter claim, four additional issues were framed. The petitioner has thereafter filed an application seeking to request the Court to frame four additional issues which were as under:

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“1. Whether the Defendant-5 has valued the Counter Claim properly and has paid sufficient Court Fees?

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Whether the Counter Claim made by the Defendant-5 is barred by law of limitation?

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Whether the Counter Claim made by the Defendant-5 is against the principles of Res Judicata?

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Whether the Counter Claim made by the

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Defendant-5 is not maintainable?”

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5 - NC: 2024:KHC:50037 WP No. 55352 of 2016

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It is not in dispute that the plaintiff has in response to the counter claim specifically raised the plea that the counter claim was improperly valued and the requisite Court fee was not paid. The petitioner has also contended that the counter claim was barred by limitation of law and also by the principles of res judicata . A question was also raised regarding maintainability of the counter claim.

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In my view, since the plaintiff in reply to the counter claim has raised the questions, the Trial Court was under an obligation to frame the additional issues. However, the Trial Court has proceeded to basically decide the additional issues, which was improper at that stage. The additional issues will have to be established in a manner known to law and mere framing of issues would not necessarily lead to an inference that the issues framed were already decided on its merits. I am therefore of the view that

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6 - NC: 2024:KHC:50037 WP No. 55352 of 2016

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the impugned order cannot be sustained and the same is set aside.

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The Trial Court is directed to frame the proposed additional issues as requested by the plaintiff. It is needless to state that all contentions on the merits of the proposed issues are left open and the parties are at liberty to adduce their evidence.

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The petition is accordingly allowed.

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Sd/(N S SANJAY GOWDA) JUDGE

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PKS List No.: 1 Sl No.: 39

Smt Sabeeha Parveen v. Sri Javed Ahmed

Case brief

What is this about?

What did the court decide?

Smt Sabeeha Parveen v. Sri Javed Ahmed

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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