Sri.C.F. Jose Vs Dr. George

SRI C.F. JOSE AGED ABOUT 83 YEARS S/O LATE C V FRANCIS CHETTUPUZHAKKARAN HOUSE PALLIKKULAM ROAD, THRISSUR TALUK, THRISSUR DISTRICT KERALA - 680 001 REPRESENTED BY HIS SON AND POWER OF ATTORNEY HOLDER SRI FRANKLIN JOSE AGED ABOUT 47 YEARS.

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…PETITIONER

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(BY SRI SIDDHARTH SUMAN, ADV.)

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AND:

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Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA

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DR. GEORGE AGED ABOUT 81 YEARS S/O LATE C V FRANCIS CHETTUPUZHAKKARAN HOUSE PALLIKKULAM ROAD THRISSUR TALUK THRISSURU DISTRICT KERALA - 680 001.

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MRS VALSA CHACKO AGED ABOUT 78 YEARS W/O LATE C F CHACKO.

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SRI SAJU CHACKO AGED ABOUT 57 YEARS W/O LATE C F CHACKO.

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MS. SEENA JOJY AGED ABOUT 57 YEARS D/O LATE C F CHACKO.

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MS. SHERLY GEORGE AGED ABOUT 54 YEARS D/O LATE C F CHACKO.

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RESPONDENTS 2 TO 5 ARE RESIDING AT CHETTUPUZHAKKARAN HOUSE, FATHIMA NAGAR CHEMBUKAVU VILLAGE THRISSUR TALUK THRISSUR DISTRICT KERALA STATE - 680 005.

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MRS. ROSHAN ANTONY AGED ABOUT 71 YEARS W/O DR C F ANTONY.

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MS. ROSE PAUL AGED ABOUT 49 YEARS D/O DR C F ANTONY.

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MS. TESSA ANTONY AGED ABOUT 40 YEARS D/O DR C F ANTONY.

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MR. JOE ANTONY AGED ABOUT 39 YEARS S/O DR C F ANTONY.

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RESPONDENTS 6 TO 9 ARE RESIDING AT CHETTUPUZHAKKARAN HOUSE, AVENUE ROAD MUNDAPULAM, CHEEYARAM VILLAGE THRISSUR VILLAGE THRISSUR TALUK THRISSUR DISTRICT KERALA - 680 005.

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…RESPONDENTS

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(BY SRI ASHOK B PATIL, ADV., FOR R-1; SRI SHASHI A PATIL, ADV., FOR R-2 TO R-5(VK NOT FILED) SRI JEEVAN J NEERALAGI, ADV., FOR R-3 & R-4;

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SRI AMTI ANAND, ADV., FOR R-6 TO R-9)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH/ SET ASIDE THE ORDER DTD 26/06/2023 PASSED BY THE HONBLE COURT OF THE XVII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY IN O.S. 5896/2006 (CCH NO. 16) ON I.A.NO. 25, WHERE-UNDER THE LEARNED CITY CIVIL JUDGE HAS REJECTED I.A.NO. 25 FILED BY THE PETITIONER UNDER ORDER XIV RULE 5 R/W SEC 151 OF CPC (I.E. ANNEXURE-A) AS ARBITRARY, ILLEGAL AND UNJUST AND TO CONSEQUENTLY ALLOW IA NO. 25 FILED BY THE PETITIONER IN O.S. 5896/2006 IN THE COURT BELOW.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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Defendant No.1 is before this Court in this writ petition filed under Article 227 of the Constitution of India with a prayer to set-aside the order dated 26.06.2023 passed on IA No.25 in O.S.No.5896/2006 by the Court of XVII Addl. City Civil and Sessions Judge, Bengaluru City.

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Heard the learned Counsel for the parties.

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O.S.No.5896/2006 is filed before the jurisdictional Civil

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Court at Bengaluru by respondent No.1 herein seeking the

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relief of perpetual injunction and mandatory injunction in respect of suit schedule A and E properties. Contesting defendants have entered appearance in the said suit and have filed their written statement opposing the suit claim.

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Based on the rival pleadings, the Trial Court had framed issues in the suit and when the suit was at the stage of crossexamination of DW-1, IA.no.25 was filed on behalf of defendant no.1 under Order XIV Rule 5 read with Section 151 of CPC with a prayer to frame an additional issue.

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The said application was opposed by respondent no.1 by filing objections.

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The Trial Court vide the order impugned, has rejected IA.no.25 filed in O.S.No.5896/2006. Being aggrieved by the same, defendant no.1 is before this Court in this petition.

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Learned Counsel for the petitioner submits that a specific

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plea has been raised in the written statement of this defendant that the suit schedule properties are not at all in existence. He refers to the schedule of the sale deed based on which title is claimed by the parties to the suit, and submits that the suit

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schedule properties do not tally with the schedule of the properties as found in the said sale deed. He submits that the Trial Court has erred in observing that issue nos.1 & 2 are sufficient to take care of the contentions now urged on behalf of defendant no.1. The onus of proving that the suit schedule properties are in existence, is on the plaintiff, and in the absence of the same, the very relief sought for in the plaint cannot be granted. Accordingly, he prays to allow the petition.

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Per contra, learned Counsel for the contesting respondent has argued in support of the order impugned, and submits that the application is filed belatedly at the stage of crossexamination of DW-1. Plaintiff has already completed his examination and he has produced sufficient material to prove the existence of the suit schedule properties. He submits that in the absence of the plaintiff proving the existence of suit schedule properties, the suit has to fail. He further submits that the Trial Court was justified in holding that the issues which are already framed are sufficient to take care of the rival contentions urged by the parties to the suit. Accordingly, he prays to dismiss the writ petition.

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Order XIV Rule 5 of CPC provides that in the event the Trial Court comes to the conclusion that the issues framed in the suit are not sufficient to properly adjudicate the dispute between the parties, at any stage, the court may frame an additional issue before passing a decree, and similarly, at any time before passing a decree strike out any issues.

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In the case on hand, based on the rival pleadings of the parties, the Trial Court has initially framed six issues on 02.11.2010, which reads as under:

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Whether plaintiff proves that as per family arrangement dated 31.3.1993, he was in lawful possession and enjoyment of suit 'A' schedule property?

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Whether plaintiff further proves that by said family arrangement, he was permitted to use approach road described as Schedule-E (CDLK portion shown in the sketch)?

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Whether plaintiff further proves that first defendant attempted to alienate suit 'A' schedule property?

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Whether plaintiff further proves that on 21.6.2006 and 02.07.2006 defendants interfered in the possession of 'A' schedule property and obstructed in using approach road shown in 'E' schedule property?

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Whether plaintiff is entitled for all three reliefs of permanent injunction as prayed?

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What order or decree?

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It appears that subsequently, the issues were re-casted

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on 28.05.2013 and the re-casted issue no.1 reads as under:

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Whether the plaintiff proves that he was in lawful possession of the 'A' and 'E' schedule property as on the date of the suit?

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Thereafter, on 13.07.2019, 01.03.2021 and 13.01.2023,

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additional issues were also framed. The proposed additional issue which is now requested to be framed reads as under:

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"whether the plaintiff proves the existence of the suit schedule properties as described in the plaint?"

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The original issues which were framed on 02.11.2010 has

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been now re-casted and the re-casted issue no.1 casts the burden on the plaintiff to prove that he was in lawful possession of suit schedule 'A' & 'E' properties as on the date of the suit.

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From a reading of the prayer made in the suit, it is apparent that the prayer in the suit is only in respect to suit

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schedule 'A' & 'E' properties. Since there is a burden cast on the plaintiff to prove that he is in lawful possession of schedule 'A' & 'E' properties as on the date of the suit, the same would take care of the contention urged on behalf of the defendant that the plaintiff is required to prove the existence of the suit schedule properties as described in the plaint. If the plaintiff is not able to prove the existence of suit schedule 'A' & 'E' properties, he would not be in a position to prove the re-casted issue no.1.

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It is not necessary that in respect of each one of the contentions urged, there should be a specific issue, if the issues already framed can take care of all the contentions urged on behalf of the parties. Even in the absence of an issue being framed based on the pleadings of the parties, on the basis of oral and documentary evidence produced in support of the pleadings, the court can always record a finding which would bind the parties.

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According to the learned Counsel for the plaintiff, during the course of evidence of PW-1, necessary material is already placed before the Trial Court to prove the existence of the suit

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schedule properties. If that is so, it is for the defendant to disprove the said aspect of the matter by producing necessary material before the Trial Court. Under the circumstances, I am of the opinion that the Trial Court was justified in rejecting the application filed on behalf of the petitioner to frame additional issue.

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The Trial Court has observed that the Issues that were earlier re-casted and additional issues that were framed would take care of all the contentions urged between the parties and framing of another additional issue is not required in the present case. Under the circumstances, I am of the opinion that the order impugned does not call for interference. Accordingly, the following order:

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Writ petition is dismissed. In view of the disposal of this writ petition, IA.no.1/2024 & IA.no.1/25 do not survive for consideration and the same are accordingly disposed of.

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