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2019 DIGILAW 1257 (KAR)

Sunanda v. Rajanna

2019-06-14

KRISHNA S.DIXIT

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JUDGMENT : Krishna S. Dixit, J. The petitioner, being the plaintiff in her suit inter-alia for a decree of partition and separate possession of the suit properties, is invoking the writ jurisdiction of this Court for assailing the order dated 02.12.2013, a copy whereof is at Annexure-E, made by learned trial Judge in O.S.No.162/2007 dismissing the suit against the contesting respondents herein. After service of notice, the respondents having entered appearance through their counsel resist the writ petition. 2. Learned counsel for the petitioner-plaintiff Sri. A.V. Gangadharappa argues that the impugned order has an error apparent on its face, inasmuch as the suit as against the respondents herein has been dismissed by the Court below on an issue which was suo motto framed when none of the contesting respondents had raised the question with regard to its maintainability. He submits that the Court below does not have justification to raise the said issue in the absence of any pleading with regard to the maintainability of the suit and especially when no Written Statement was filed by the contesting respondents. So arguing, he seeks allowing of the Writ Petition. 3. Per contra, learned counsel for the respondent defendants contends that the impugned order dismissing the suit as against the respondents herein amounts to a decree within the definition of Section 2(2) of the Code of Civil Procedure, 1908 and therefore, the right of appeal avails under the provision of the Code of Civil Procedure which the petitioner has not availed nor has she explained the difficulty as to why she could not avail the same and therefore, the writ petition is liable to be dismissed on the ground of availability of alternate and more efficacious remedy. 4. He further submits that in the matter of framing of issues, the trial Court has enormous power regardless of the pleadings, to frame issues for deciding the actual lis between all the parties or some of the parties and in respect of some of the properties as against some of the parties; the gist of the case in hand is that the Court on the basis of the pleadings of the plaintiff and her deposition in her examination-in-Chief wherein several documents came to be marked from her side having framed the issue has decided the same; therefore, no fault can be found with the impugned order. So arguing, he seeks dismissal of writ petition. So arguing, he seeks dismissal of writ petition. 5. I have heard the learned counsel for the petitioner and learned counsel for the respondents. I have perused the petition papers and the decisions cited at Bar which shall be controverted hereinafter. 6. The suit in O.S.No.162/2007 filed by the petitioner herein is for a decree of partition and separate possession of the suit properties and that she is not bound by the alienation or interest of defendants created by such alienations. Some of the defendants had resisted the suit by filing the written statement however, these respondents have not filed written statement. 7. The issues having been framed by the Court below and the petitioner having examined in Chief, getting marked as many as 12 documents as per Exs.P1 to P12 which comprise the Sale Deeds of all these respondents, the Court below framed a preliminary issue as to the maintainability of suit as against the respondents herein and after hearing the parties answered the issue in negative and thereby dismissed the suit against respondents 3 to 10. However, in respect of others, the suit is still pending for adjudication. 8. The contention of learned counsel for the petitioner Sri. A.V. Gangadharappa that the impugned order does not partake the character of the decree as defined under Section 2(2) of the Code of Civil Procedure, 1908 in view of authoritative pronouncements in the decisions of the Apex Court in the case of R.RATHINAVEL CHETTIAR AND ANOTHER V/S V.SIVARAMAN AND OTHERS, (1999) 4 SCC 89 , RATANSINGH V/S VIJAYSINGH, (2001) AIR SC 279 AND S.SATNAM SINGH & OTHERS V/S SURENDER KAUR, (2009) AIR SC 1089 does not impress the Court because: (a) the suit as against the respondents herein has been finally determined by a decree of dismissal. No lis remains to be adjudicated as against the respondents herein, regardless of legality and sustainability of the impugned order; (b) the Apex Court in the case of R.RATHINAVEL CHETTIAR AND ANOTHER V/S V.SIVARAMAN AND OTHERS, (1999) 4 SCC 89 AT PARA 10 having reproduced the definition of decree at para 12 states as under; "12. What is essential is that the matter must have been finally decided so that it becomes conclusive as between the parties to the suit in respect of the subject matter of the suit with reference to which relief is sought. What is essential is that the matter must have been finally decided so that it becomes conclusive as between the parties to the suit in respect of the subject matter of the suit with reference to which relief is sought. It is at this stage that the rights of the parties are crystallised and unless the decree is reversed, recalled, modified or set aside, the parties cannot be divested of their rights under the decree." This decision not only supports the contention of the petitioner but fortifies the contra contention of the respondents side. (c) the Apex Court in Ratansingh's Case supra, at para 11 of its judgment has observed as under: "11. In order that decision of a Court should become a decree there must be an adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature " Similarly, in the case of S.Satnam Singh supra, the Apex Court at paragraphs 14 and 15 has laid down the ingredients of decree. d) in the case of Rishabh Chand Jain, supra cited by the respondents in support of their contention as to the meaning of decree gains acceptance because, at para 13, the Apex Court has observed as under: "13. In terms of Section 2(2) of the Code, in case, the court adjudicating the case, conclusively determines the rights of the parties with regard to any one or more or all of the matters in controversy in the suit, the requirement of decree is satisfied. Such determination can be preliminary or final" 9. Be that as it may; even for the sake of arguments, going against the contention of the respondents this Court now examines the main matter on merits as insisted upon by both the sides. The contention of the learned counsel for the petitioner that the trial Court has no justification for framing an issue as to the maintainability of the suit as against the respondents herein again is liable to be negatived inasmuch as the trial Court has enormous power to frame any issue at any stage of the suit, touching the adjudication of the matter subject to all just exceptions into which the case of the petitioner is not shown to fit. The trial Court has framed an issue on maintainability of the suit as against the contesting respondents on the basis of the evidence tendered by the petitioner-plaintiff as PW1 wherein, she got marked as many as 12 documents some of which are certified copies of the Sale Deeds under which these respondents have derived their title to the property, much before the amendment to Section 6 of the Hindu Succession Act, 1956 came to be enacted. Going by the law laid down by this Court in the case of MS.R.KANTHA V/S UNION OF INDIA, (2009) ILR(KAR) 3699, the rights/interests of pre-amendment bonafide purchasers of the properties vide registered instruments are not liable to be disturbed. The legal reasoning of the Court below cannot be found fault with. 10. The last contention that no issue could have been framed by the Court below as to the maintainability of the suit as against these respondents especially when they have not filed their Written Statement is liable to be rejected inasmuch as filing of the Written Statement is not a condition precedent for framing of an issue as to maintainability of the suit. What all the material the trial Court has to look into for framing of the issues is a well defined domain of law. Even going by the contemporary legal norms and standards emanating from Order XIV of CPC, 1908, the framing of the maintainability issue and the decision thereon by the Court below cannot be found fault with. In the above circumstances, no other grounds having been urged, the writ petition being devoid of merits is dismissed.