Extracted from the PDF above. The PDF is authoritative.
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HC-KAR NC: 2025:KHC:37095 WP No. 630 of 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 630 OF 2025 (GM-CPC) BETWEEN:
SRI. M. G. CHANDROJI RAO S/O LATE M.G.GIRIMOJI RAO, AGED ABOUT 65 YEARS, RESIDING AT 'GIRIMOJI RAO COMPOUND' NAGAWARA MAIN ROAD, ARABIC COLLLEGE POST, BENGALURUT -560 045. …PETITIONER (BY SRI. J M RAJANNA SETTY., ADVOCATE) AND:
1. SRI. K. P. SHAMANNA S/O LATE H.T. PUTTANNA SHETTY AGED ABOUT 65 YEARS, RESIDING AT NO.1, HBR LAYOUT, TH DBLOCK, KEMPEGOWSA ROAD, BENGALURUT -560 043. 2. SMT.JAYALAKSHMI W/O LATE RAMAIAH SHETTY, AGED ABOUT 55 YEARS, RESIDING AT NO.1,2,3 HBR LAYOUT, 4TH BLOCK, KEMPEGOWDA ROAD,
Digitally signed by NAGAVENI Location: High Court of Karnataka
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BENGALURU -560 043. 3. SMT. RAJINI W/O BALASUBRAMANIAM, D/O LATE RAMAIAH SHETTY, AGED ABOUT 34 YEARS, RESIDING AT NO.1,2,3 HBR LAYOUT, 4TH BLOCK, KEMPEGOWDA ROAD, BENGALURU -560 043. 4. SRI. CHANDAN S/O LATE RAMAIAH SHETTY, AGED ABOUT 32 YEARS, RESIDING AT NO.1,2,3 HBR LAYOUT, 4TH BLOCK, KEMPEGOWDA ROAD, BENGALURU -560 043. 5. SMT.SANGEETHA W/O KRISHNAMURTHY, D/O LATE VIJAYALAKSHMI, AGED ABOUT 40 YEARS, RESIDING AT NO.492/2 4TH BLOCK, 3RD MAIN ROAD,HBR LAYOUT, BENGALURU -560 043. 6. SMT. DEEPA B.K W/O MAHESH CHAND, D/O LATE VIJAYALAKSHMI, AGED ABOUT 48 YEARS, RESIDING AT NO.16,NEW NO.31, 2ND ANJANAYA TEMPEL STREET, SHESHADARIPURAM, BENGALURU -560 043. - 3 -
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7. SMT. LAVANYA W/O CHETHAN KUMAR, AGED ABOUT 36 YEARS, RESIDING AT NO.40(S) 2ND MAIN ROAD, 1ST STAGE, 2ND PHASE, CHANDRALAYOUT SBI BANK OPPOSITE DROAD, BENGALURU -560 040
8. SRI. VIKRAM S/O LATE VIJAYALAKHSHMI, AGED ABOUT 28YEARS, RESIDING AT MURUGESH MUDLUYAR LANE, NAGARTPETE CROSS, BENGALURU -560 002
9. SRI. K.P. SRIDHAR S/O LATE H.T. PUTTANNA SHETTY AGED ABOUT 58 YEARS, RESIDING AT NO.479/2, 1ST FLOOR, SIMHADRI, 4TH BLOCK, HBR LAYOUT, KALYAN NAGR POST, BENGALURU -560 043
10. SMT. PARVATHI W/O UMASHANKAR, D/O LATE PUTTANA SHETTY, AGED ABOUT 51 YEARS, RESIDING AT NO.9, GOKUL NILAYA, NAGARTHPET, BENGALURU -560 002
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11. SRI.KRISHNAMURTHY S/O LATE H.T. PUTTANNA SHETTY AGED ABOUT 48 YEARS, RESIDING AT NO.492/2, 4TH BLOCK, 3RD A MAIN, HBR LAYOUT, BENGALURU -560 043
12. SMT.
SUMITRA W/O VEERKUMAR, D/O LATE PUTTANNA SHETTY, AGED ABOUT 43 YEARS, RESIDING AT NO.57, 29TH A CROSS, GEETHA COLONY, JAYANAGAR 4TH BLOCK, BENGALURU -560 011. 13. SRI. G NASIRULLA S/O LATE ABDUL GHANI M H AGED ABOUT 48 YEARS, RESIDING AT NO.1654, 1ST CROSS, SAMMAD LAYOUT, BEHIND HP PETROL PUMP BENGALURU -560 043
14. SRI. ZAMEERULLA S S/O ABDUL AZEEZ AGED ABOUT 39 YEARS, RESIDING AT NO.905, HENNUR MAIN DROAD KACHARAKANAHALLI BENGALURU -560 084
15. MRS. SHABREENTAJ
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W/O ZAMEERULLA S AGED ABOUT 31 YEARS, RESIDING AT NO.905, HENNUR MAIN DROAD KACHARAKANAHALLI BENGALURU -560 084
16. MRS. SHABINA DASTAGIR W/O MOHAMED DASTAGIR AGED ABOUT 77 YEARS, RESIDING AT NO.M9, 2ND MAIN, CAUVERY NAGAR, RT NAGAR POST BENGALURU -560 032
17. SRI. ANILKUMAR.S S/O SRIDHAR K P AGED ABOUT 34 YEARS, RESIDING AT NO.479/2,1ST FLOOR SIMHADRI, 4TH BLOCK, HBR LAYOUT, KALYANAGAR POST BENGALURU -560 043
18. SRI. SUNILKUMAR S S/O SRIDHAR K P AGED ABOUT 34 YEARS, RESIDING AT NO.479/2,1ST FLOOR SIMHADRI, 4TH BLOCK, HBR LAYOUT, KALYANAGAR POST BENGALURU -560 043
19. MRS. G.K. GOWRI W/O SRI SRIDHAR K P AGED ABOUT 51 YEARS, RESIDING AT NO.479/2,1ST FLOOR
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SIMHADRI, 4TH BLOCK, HBR LAYOUT, KALYANAGAR POST BENGALURU -560 043
20. MRS. RAFEEQUNNISSA W/O T K NASRULLA SHARIFF AGED ABOUT 62 YEARS, RESIDING AT FLAT NO.A -2, LAZARA COMFORT NO.48, SUBBAINAPALYA BANASWADI MAIN ROAD BENGALURU -560 033. 21. SRI. T.F. ATIQUR-REHAMAN S/O LATE FAZLUR RAHIMAN AGED ABOUT 39 YEARS, RESIDING AT NO.210, 80 FEET ROAD, BEHIND H P PETROL BUNK HBR LAYOUT BENGALURU -560 043 …RESPONDENTS (BY SRI. JANARDHANA G., ADVOCATE FOR C/R)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 02/12/2024 VIDE ANN-A PASSED BY THE FILE OF XXX ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN OS NO. 4940/2018 PASSED ON PRELIMINARY ISSUE NO. 4 AND 7 AND ALLOW THE WP BY REJECTING THE PLAINT.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA
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HC-KAR NC: 2025:KHC:37095 WP No. 630 of 2025
ORAL ORDER
The petitioner is defendant No.15 is before this Court calling in question an order dated 02.12.2024, by which the application of the petitioner filed to treat Issue Nos.4 and 7 as preliminary issue is turned down and on an observation that they are a mixed question of law and facts and therefore, it would be considered along with the main matter. The issue lies in a narrow compass. The plaintiff/respondent No.1 was before this Court in MFA.No.2711/2020, which came to be disposed by an order dated 24.06.2021. The order of the Co-ordinate Bench of this Court reads as follows:
"This appeal by the plaintiff in O.S.No.4940/2018 is
directed against the impugned order dated 19.12.2019 on the file of XXX Addl.City Civil and Sessions Judge, Bengaluru (for short 'the trial court'), whereby the applications I.A.Nos. 1, 2, 6 and 7 filed by the appellant- plaintiff seeking temporary injunction against defendant No.8 were rejected by the trial Court.
2. On 16.07.2020, this Court restrained the respondents from putting up further construction on the suit schedule properties and alienating the suit schedule properties or any part thereof. The said interim order continues to be in force even as on today. Further, from among the various issues framed in the suit by the trial court, issue No.4 pertains to maintainability of the suit and the same is treated as a preliminary issue.
3. In view of the aforesaid facts and circumstances, though several contentions are urged by both sides in support of their respective claims / defences including
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HC-KAR NC: 2025:KHC:37095 WP No. 630 of 2025
maintainability of the suit etc., without expressing any opinion on the merits /demerits of the same, I deem it just and appropriate to dispose of the appeal by modifying the impugned order and issuing certain directions to the trial court.
4. In the result, I pass the following:-
ORDER (i) Appeal is hereby disposed of. (ii) The impugned order dated 19.12.2019 passed on 1.A.Nos.1,2 6 and 7 in O.S.No.4940/2018 on the file of XXX Addl.City Civil and Sessions Judge, Bengaluru is hereby modified. (iii) The trial Court is directed to hear and pass appropriate orders on issue No.4, which is already treated as preliminary issue after giving sufficient opportunity to the parties in the suit. (iv) The trial Court shall decide the said preliminary issue without being influenced by any of the findings/observations made by the trial court in the impugned order and all rival contentions of both sides including maintainability of the suit etc., are kept open to be decided by the trial court. (vi) The interim order dated 16.07.2020 passed by this Court in the present appeal shall continue to remain in force till disposal of the suit by the trial court."
2. The Co-ordinate Bench of this Court, after noticing the plea of the plaintiff, set aside the particular order, directed the concerned Court to treat Issue No.4 as a preliminary issue after giving sufficient opportunity to the parties to the suit. It was further directed that the trial Court shall decide the said issue
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without being influenced by any of the observations made in the order impugned earlier, including the maintainability of the suit. What the Court would do, after the matter being remitted back to the hands of the concerned Court is the impugned action. The impugned order dated 02.12.2024 is as follows:
"ORDERS ON PRELIMINARY ISSUE NOS.4 & 7 This suit is filed by the plaintiff against the defendants seeking judgment and decree for partition in respect of schedule 'D' property and separate possession of his 1/7th share. 2. The defendant Nos.8, 15,16, 17 and 18 have filed their separate written statements and denied the averments made in the plaint and contended that suit of the plaintiff is not maintainable and prays to dismiss the suit. 3. On the basis of rival contentions, this Court has framed several issues and also Issue Nos.4 and 7, which are ordered to be treated as preliminary issues, read as follows:
PRELIMINARY ISSUE NOS.4 & 7
4. Whether the suit is maintainable before this Court in view of the acquisition of the suit schedule properties by BDA? 7.
Whether the suit is barred by limitation ? 4. Heard the learned counsel for both the parties on preliminary issues and perused the records. - 10 -
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5. On perusal of rival contentions, it is clear that plaintiff contends that acquisition by BDA is not completed and on the otherhand, the defendants contend that BDA has acquired the schedule property. Further, the defendants also contend that suit is also barred by law of limitation. On perusal of pleadings and materials, this Court is of the view that issue Nos.4 and 7 cannot be decided without recording the evidence and more so, the said questions are mixed questions of law, and facts. Hence, this Court is of the view that appropriate orders can be passed in respect of said issues after recording the evidence alongwith other issues. Hence, this Court has posted for matter to next stage. For plaintiff's evidence by 12/12/24."
3. The concerned Court does not even look into the order passed by the Co-ordinate Bench of this Court, but holds that the decision on a preliminary issue would be a mixed question of law and fact and therefore, it would be considered at the appropriate stage. This Court not for nothing that the Co-ordinate Bench of this Court had directed that Issue No.4 which is already treated as a preliminary issue be decided at the outset, as it would cut the root of the matter. 4. The concerned Court blissfully ignores the order passed by the Co-ordinate Bench of this Court, which is sans countenance. Solely on the reason, not on the merit, that the concerned Court has not followed the order passed by the
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Co-ordinate Bench of this Court, the order is rendered unsustainable. The impugned order thus, is to be obliterated. 5. For the aforesaid reasons, the following :
ORDER i) The petition is allowed. ii) The order dated 02.12.2024 on the file of the XXX Additional City Civil and Sessions Judge, Bengaluru in O.S.No.4940/2018 is quashed. iii) The concerned Court shall now adhere to what the Co-ordinate Bench had directed and passed necessary orders in accordance with law bearing in mind the observations made in the course of the
order. iv) All contentions remain open other than the one considered.
Sd/- (M.NAGAPRASANNA) JUDGE
PHM List No.: 1 Sl No.: 10