- 1 - HC-KAR NC: 2025:KHC:19498-DB M.F.A. No.8515/2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JUNE, 2025 PRESENT THE HON'BLE MRS. K.S. MUDAGAL AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.8515/2018 (FC) BETWEEN: SMT. PUSHPA M.P. W/O PUTTASWAMY AGED ABOUT 36 YEARS R/AT. HESARAGHATTA MAIN ROAD MALLIKARJUNA NILAYA 3RD B CROSS, DEFENCE COLONY BANGALORE - 560073. …APPELLANT (BY SRI. RAJESH SHETTY, ADV.,) AND: SRI. PUTTASWAMY S/O NANJAIAH AGED ABOUT 51 YEARS R/AT. NO.64, DEFENCE COLONY 8TH CROSS, BAGALAGUNTE BANGALORE - 560073. …RESPONDENT (BY SRI. H.S. SHANKAR, ADV.,) - - - THIS MFA IS FILED UNDER SECTION 19 OF THE FAMILY COURTS ACT, 1984, PRAYING TO SECURE THE RECORDS IN O.S.NO.54/2013, ON THE FILE OF THE II ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT AT BANGALORE. SET ASIDE THE JUDGMENT AND DECREE DATED 1.2.2018 PASSED IN O.S.NO.54/2013 BY THE II ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT AT BANGALORE, AND DECREE THE SUIT AS PRAYED FOR & ETC. Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:19498-DB M.F.A. No.8515/2018 THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. K.S.MUDAGAL and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL JUDGMENT (PER: HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL) Challenging the judgment and decree in O.S.No.54/2013 dated 01.02.2018 on the file of II Addl. Principal Judge, Family Court, Bengaluru, plaintiff in the said case has preferred this appeal. 2. The appellant was the plaintiff and the respondent was the defendant in O.S.No.54/2013 before the trial Court. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court. 3. The case of the plaintiff is that herself and defendant got married on 07.03.1999 at Maddur Choultry as per their customs. The parents of the plaintiff gave 40 grams of gold ornaments and Rs.30,000/- cash as dowry to the defendant. It is averred that plaintiff and defendant led the married life for sometime, plaintiff gave birth to male child viz., Pavan Kumar and thereafter to a female child viz., Nandini. - 3 - HC-KAR NC: 2025:KHC:19498-DB M.F.A. No.8515/2018 They were running a petty shop and the defendant is a handicapped person, hence, the plaintiff was doing business and maintaining the family. Later she has expanded the business by supplying coffee, tea to the factories and started selling tender coconut. By such of her income, herself and the defendant purchased a site at Bagalagunte vide sale deed dated 22.01.2005 in the name of defendant. It is further averred that to purchase the said site, the parents of the plaintiff have given some money. In the year 2006, the Government allotted one petty shop to defendant under the disability quota and in the said shop, the plaintiff and defendant continued their business. It is also averred that the plaintiff and defendant have constructed four houses in the suit schedule property and in one portion they have started residing and the remaining portions were let out. It is contended that the defendant is addicted to alcohol and other habits, started harassing the plaintiff and her children physically as well as mentally. The defendant without any reason used to pick up quarrel with the plaintiff and used to throw her out from the matrimonial home, however, at the intervention of the elders they continued their married life for sometime. However, in the - 4 - HC-KAR NC: 2025:KHC:19498-DB M.F.A. No.8515/2018 month of June 2012, the plaintiff and her children were thrown out from the matrimonial home by the defendant and informed that he would sell the suit schedule property as per his wish and made an attempt to sell the same. It is further contended that the defendant is attempting to do illegal transaction with suit schedule property without providing any share to the plaintiff and her children. Hence, prayed for judgment and decree of partition and allotment of share in the suit schedule property. 4. The defendant filed the written statement denying the averments made in the plaint. He denied that the plaintiff gave 40 grams of gold and Rs.30,000/- cash as dowry. It is admitted that in their wedlock, two children have been born and they are in the custody of plaintiff. It is further averred that the property was purchased by the earnings of the defendant and the allegation that suit schedule property was purchased from the contribution of the parents of the plaintiff is denied. It is also averred that the suit schedule property is purchased from defendant's earnings and thereafter he has put up construction. It is contended that the plaintiff without any - 5 - HC-KAR NC: 2025:KHC:19498-DB M.F.A. No.8515/2018 justifiable reason, left the matrimonial home, hence, sought for dismissal of the suit. 5. The trial Court on 10.07.2014 framed the following issues: "1. Whether the plaintiff proves that the defendant thrown herself and her children out of the matrimonial home in the month of June 2012? 2. Whether the plaintiff proves that she was doing the business since the defendant is an handicapped person? 3. Whether the plaintiff is entitled for the relief as prayed? 4. What order or decree?" 6. The trial Court recorded the evidence of the parties. Plaintiff examined herself as PW-1 and got marked Exs.P-1 to P-11. Defendant examined himself as DW-1 and got marked Exs.D-1 to D-14. The trial Court, on appreciation of the pleading and evidence on record, has recorded the finding that the plaintiff has failed to prove that she was doing business and has invested her savings and also that her parents have given the amount for purchase of site and proceeded to dismiss the suit. Being aggrieved, this appeal is filed by the plaintiff. - 6 - HC-KAR NC: 2025:KHC:19498-DB M.F.A. No.8515/2018 7. Sri.Rajesh Shetty, learned counsel for the appellant-plaintiff submits that the trial Court has committed grave error in recording the finding that the plaintiff has failed to prove that she had contributed the amount for purchase of site and construction of house, the said finding is contrary to the pleading and evidence on record. It is submitted that the defendant is physically handicapped and the entire business and family affairs was taken care by the plaintiff and it is her savings and parents contribution which helped the defendant to purchase the site and construct the house in the suit schedule property. It is further submitted that the trial Court has committed a grave error in altering the issues framed on 10.07.2014. It is also submitted that the trial Court has framed four (04) issues on 10.07.2014. On the date of judgment itself additional issue casting burden to prove the same on plaintiff was framed. Further without providing opportunity to the plaintiff to adduce evidence on such additional issue, proceeded to hold that plaintiff has not proved the said issue. Therefore, on that ground alone the impugned judgment and decree of the Trial Court requires to be set aside. Hence, he seeks to remand - 7 - HC-KAR NC: 2025:KHC:19498-DB M.F.A. No.8515/2018 the matter to the trial Court with a direction to provide an opportunity to adduce evidence on the additional issue and with a further direction to dispose of the matter in a time bound manner. 8. Per contra, Sri.H.S.Shankar, learned counsel for the respondent-defendant submits that the parties before the trial Court have adduced the evidence. The evidence on record clearly demonstrates that the plaintiff has failed to prove that the suit schedule property was purchased from the earnings of the plaintiff and from the contribution of her parents. It is submitted that the defendant was carrying out the business and out of his earnings, the suit schedule property was purchased and later construction was put up. Hence, the said property is the self-acquired property of the defendant. He fairly concedes that after framing the additional issue, the Trial Court ought to have provided an opportunity to the parties to adduce additional evidence. It is also submitted that if the matter is remanded back to the Trial Court, specific time frame may be fixed to dispose of the suit as the suit is of the year 2013. - 8 - HC-KAR NC: 2025:KHC:19498-DB M.F.A. No.8515/2018 9. Considering the submissions of both sides and examining the materials on record, the point that arises for consideration is: “Whether the impugned judgment and decree of the Trial Court is sustainable in law”? ANALYSIS 10. The pleadings and evidence on record indicate that marriage of plaintiff and defendant was solemnized on 07.03.1999 at Maddur Choultry and couple begot a son and a daughter. The matrimonial dispute between the plaintiff and the defendant arose, which resulted in the plaintiff residing separately with her children. The case of the plaintiff is that the defendant-husband is physically handicapped and after marriage she undertook petty shop business which was expanded later. It is contended that the shop premises was allotted to the defendant under physical disability quota. Thereafter, they have expanded their business and out of her savings as well as the contribution from her parents, suit schedule property was purchased and the defendant is illegally trying to alienate the property by depriving her rights. - 9 - HC-KAR NC: 2025:KHC:19498-DB M.F.A. No.8515/2018 11. To substantiate the entitlement of share in the suit schedule property, the plaintiff adduced evidence before the Trial Court. The affidavit evidence is nothing but the reiteration of the plaint averments. During the cross-examination, PW-1 is consistent that the suit schedule property was purchased out of her savings and her father's contribution. Ex.P1 is the sale deed dated 22.01.2005 with respect to the suit schedule property, Exs.P2, P3, P6 to P8 are the photographs, Ex.P4 is the encumbrance certificate, Ex.P5 is the electricity bill, Exs.P9 and P10 are the legal notice and reply notice and Ex.P11 is the deposition of defendant in C.Misc.No.82/2013. 12. The Trial Court, by the impugned judgment and order held that the plaintiff has failed to prove that she was doing business, invested her savings and also her parents have contributed for purchase of the site and dismissed the suit. The learned counsel for the appellant-plaintiff is right in his submission that the Trial Court ought to have provided an opportunity to adduce evidence with regard to the additional issue framed at the time of passing of the judgment. - 10 - HC-KAR NC: 2025:KHC:19498-DB M.F.A. No.8515/2018 13. The Trial Court records clearly indicate that issue Nos.1 to 4 have been framed on 10.07.2014 and based on the aforesaid issues, the parties adduced evidence. The Trial Court framed additional issue i.e. "Whether the plaintiff proves that the suit schedule property was purchased in the name of defendant out of her savings and also the amount given by her parents?" The additional issue casts burden on the plaintiff to prove whether the suit schedule property was purchased from her savings and contribution of her parents. However, no opportunity was provided to the plaintiff to prove the said issue by adducing evidence. In the absence of opportunity to adduce evidence on additional issue, the conclusion and finding recorded by the Trial Court on the additional issue is contrary to the settled principles of law and the principles enunciated in Order XIV of the Code of Civil Procedure, 1908. 14. Order XIV Rule 5 of the CPC empowers the Court to frame additional issues on such terms as it thinks fit to determine the matter in controversy between the parties. However, the power to alter the issues or frame additional issue is required to be exercised by the Trial Court judiciously. - 11 - HC-KAR NC: 2025:KHC:19498-DB M.F.A. No.8515/2018 In the instant case, the Trial Court, without providing any opportunity to the parties, struck down issue No.1 and framed the additional issue at the time of passing of the judgment. Such exercise of power by the Trial Court is a clear error of law and procedure contemplated under the CPC. 15. It is settled position of law that the duty to frame issue is casted on the Court, it has also the power to amend/alter the existing issue or frame additional issue. However, the power to amend or frame additional issue cannot be exercised without giving any opportunity to the parties and further to adduce evidence on amended issues or to hear them on such issues. The findings recorded on subsequently framed issues without evidence, would be a travesty of justice. Hence, on this ground, the impugned judgment and decree of the Trial Court is liable to be set aside and the matter requires to be remitted back to the Trial Court to provide opportunity to the parties to the suit to submit on the issues and thereafter, an opportunity to adduce evidence on such issues. We make it clear that we have not recorded any finding on the merits of the contentions of the parties. The Trial Court is required to - 12 - HC-KAR NC: 2025:KHC:19498-DB M.F.A. No.8515/2018 provide reasonable opportunity to the parties to the suit and dispose of the said suit as expeditiously as possible on its merits. 16. For the aforementioned reasons, we proceed to pass the following: ORDER (i) The appeal is allowed. (ii) The impugned judgment and decree dated 01.02.2018 passed in O.S.No.54/2013 by the II Addl. Prl. Judge, Family Court at Bengaluru, is hereby set aside and the matter is remitted back to the Trial Court for fresh consideration in accordance with law. (iii) The Trial Court is directed to hear the parties on modification of issues, thereafter provide an opportunity to both parties to adduce evidence and dispose of the suit on merits as expeditiously as possible at any rate not later than six (06) months from the date of appearance of the parties. - 13 - HC-KAR NC: 2025:KHC:19498-DB M.F.A. No.8515/2018 (iv) The plaintiff and the defendant shall appear before the Trial Court on 27.06.2025 without awaiting any notice from the Trial Court. Transmit the records to the Trial Court. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR/RV List No.: 1 Sl No.: 35