- 1 - HC-KAR NC: 2026:KHC:4273 WP No. 812 of 2026 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 812 OF 2026 (GM-CPC) BETWEEN: 1. SMT. MALLIKA HEGADE W/O LATE NARAYAN H. SHETTY, AGED ABOUT 56 YEARS. 2. MR.NISHITH N SHETTY S/O LATE NARAYAN H SHETTY AGED ABOUT 32 YEARS BOTH PETITIONER NO. 1 AND 2 RESIDING AT NO.303, 3RD CROSS INDRANI APARTMENT, DESHPANDE NAGAR HUBLI, TRAFFIC ISLAND HUBBALLI - 580 029. …PETITIONERS (BY SRI. VINAYAK MEGUNDI, ADVOCATE) AND: 1. SMT. JALAJA SHEDTHI @ JALAJA SHETTY W/O. LATE HIRIYANNA SHETTY, AGED ABOUT 84 YEARS, RESIDING AT NO.303, 3RD CROSS, INDRANI APARTMENT, DESHPANDE NAGAR, HUBLI, TRAFFIC ISLAND, HUBBALLI - 580 029. Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:4273 WP No. 812 of 2026 2. MR. RAVINDRA H SHETTY, S/O. LATE HIRIYANNA SHETTY, AGED ABOUT 65 YEARS, RESIDING AT FLAT NO.103, VENKATAGIRI, OPP. BAPPANADU TEMPLE, BAPPANADU, MULKI - 574 154, D.K. DISTRICT. 3. MRS. SUJATHA P. SHETTY D/O LATE HIRIYANNA SHETTY AND W/O PADMANABHA SHETTY AGD ABOUT 57 YEARS R/AT NO.A-12, ASHOKA APARTMENT BHAVANI NAGAR, KESHWAPUR HUBBALLI - 580 023. 4. MR. JAGADEESHA H SHETTY S/O. LATE HIRIYANNA SHETTY, AGED ABOUT 56 YEARS, RESIDING AT NEO. A-12, ASHOKA APARTMENT, BHAVANI NAGAR, KESHWAPUR, HUBBALLI - 580 023. 5. MRS. SUREKHA S. SHETTY, D/O. LATE HIRIYANNA SHETTY, AND W/O. MR SURESH, AGED ABOUT 54 YEARS, RESIDING AT NO.2-182C, "SHRI KRISHNA", GUME BETTU, 76 BADAGUMANE, NEAR BHARATH RICE MILL, ALEVOOR, UDUPI TALUK - 574 118. …RESPONDENTS THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE ORDER DATED 05.12.2025 PASSED BY THE HONBLE PRINCIPAL - 3 - HC-KAR NC: 2026:KHC:4273 WP No. 812 of 2026 SENIOR CIVIL JUDGE AND C.J.M, UDUPI, ON THE APPLICATION FILED UNDER ORDER XIV RULE 2 CPC IN O.S.NO.139/2024 (ANNEXURE-A) AND ETC., THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR ORAL ORDER This petition by the defendants in O.S. No.139/2024 on the file of the Principal Senior Civil Judge and CJM, Udupi, is directed against the impugned order dated 05.12.2025 whereby the application filed by the petitioner - defendant No.2 under Order XIV Rule 2 CPC to decide additional Issue No.1 as a preliminary issue and decided the same before proceeding further in the matter was rejected by the trial Court by holding as under - The Defendant No.2 filed application under Order XIV Rule 2 of CPC prays the court to take additional issue No.1 as preliminary issue and decide it before proceed with the matter. Defendant No.2 sworn to an affidavit, wherein he is stated that the plaintiff have filed the suit for partition and for separate possession, in respect of the family properties. The court had framed the issues, wherein, the additional issue No.1 is with - 4 - HC-KAR NC: 2026:KHC:4273 WP No. 812 of 2026 regard to question of limitation. This issue goes to the root of the suit as it decided the maintainability of the suit. Accordingly, pray the court to treat the said issue as preliminary issue. The plaintiff filed objections to the L.A. filed by the defendant No.2. Heard. The plaintiff filed the suit for partition and for separate possession. The defendant has taken the contention that the suit is barred by limitation and cause of action is also barred by limitation Under Order XIV Rule 2 of CPC. only those issues which are pure issues of law and which can dispose all the suit can be treated as preliminary issue. Wherein, issue involves mixed question of law and facts cannot be tried preliminary issue. In the present case, the additional issue No.1 framed by this court is of limitation which is mixed question of law and fact. Therefore, it does not fallen within the ambit of Order XIV Rule 2(2) of CPC. Hence, application filed by the defendant No.2 to treat the additional issue No.1 as preliminary issues is not maintainable. The said issue shall be tried along with the other issues at the time of full fledged trial. Moreover, the cause of action is deniable of facts. Now at this stage, one cannot be decided the suit as barred by limitation and there is no cause of action to file the suit, since the cause of action regarding continuous and not stagnant. Hence, I proceed to pass the following: ORDER I.A. filed by the Defendant No.2 under Order XIV Rule 2 of CPC is hereby rejected. - 5 - HC-KAR NC: 2026:KHC:4273 WP No. 812 of 2026 2. A perusal of the material on record including the impugned order will indicate that the trial Court has come to the correct conclusion that additional issue No.1 framed by the trial Court as regards limitation gave rise to a mixed question of fact and law which would not fall within the scope and ambit of "pure question of law" as contemplated under Order XIV Rule 2 CPC as a consequence of which the said issue pertaining to limitation, which is a mixed question of fact and law, cannot be treated as a preliminary issue as held by the Apex Court in several judgments including the case of P Kumarakuruban vs. P Narayan and others reported in 2025 SCC Online SC 975. 3. Under these circumstances, I do not find any illegality or infirmity in the impugned order which cannot be said to occasion failure of justice warranting interference by this Court as held by the Apex Court in the case of Radhey Shyam and Ors v Chhabi Nath and Ors – (2015) 5 SCC 423; K.P. Natarajan and Ors. vs. Muthalammal and Ors – AIR 2021 SC 3443; and in Mohd. Ali v V. Jaya – (2022) 10 SCC 477. Accordingly, I do not find any merit in the petition and the same is hereby disposed of without interfering - 6 - HC-KAR NC: 2026:KHC:4273 WP No. 812 of 2026 with the impugned order. However, it is made clear that all rival contentions on all issues including the additional issue regarding limitation are kept open and no opinion is expressed on the merits/demerits of the rival contentions. Sd/- (S.R.KRISHNA KUMAR) JUDGE YKL List No.: 1 Sl No.: 32