Raghavendra vs T D Srinivas

Type Court Judgment Court Karnataka Decided Dec 03, 2025

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Citation: sooperkanoon.com/1661806
Court: Karnataka High Court
Judge: S Vishwajith Shetty
Decided On: Dec 03, 2025
Case Number: WP/4559/2020

Parties & Advocates

Appellant / Petitioner

Raghavendra

Respondent

T D Srinivas

Excerpt

.....which was filed in os no.206/2007.2. heard the learned counsel for the parties.3. suit in os no.206/2007 was filed before the jurisdictionalcivil court at tarikere by respondents herein and in the said -3- suit, ia no.15 was filed by them under order vi rule 17 of cpc with a prayer to amend the plaint. the said application was dismissed by the trial court by order dated 10.07.2017. the same was assailed by the plaintiffs before this court in wp no.35986/2017. the said writ petition was disposed off reserving liberty to the petitioners therein to challenge theorder dated 10.07.2017 passed on ia no.15 as provided undersection 105 of cpc before the appellate court in the event of he filing an appeal against the decree to be passed in the suit. after disposal of wp no.35986/2017, the trial court had dismissed os no.206/2007 and thereafter, ra no.71/2018 was filed by the plaintiff challenging the judgment and decree passed in os no.206/2007. in the said appeal, the first appellate court has passed the order impugned allowing ia no.15 which was filed in os no.206/2007. being aggrieved by the same, defendants are before this court.4. section 105 of cpc reads as follows:- "105. other orders.-(1) save as otherwise expressly provided, no appeal shall lie from anyorder made by a court in the exercise of its originalor appellate jurisdiction; but where a decree is -4- appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.(2) notwithstanding anything contained in sub-section (1), where any party aggrieved by an orderof remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."5. the aforesaid provision of law provides that in an appealwhich is filed challenging any decree, orders passed on any interlocutory application, during the pendecny of the suit, which affect the decision of the.....

Full Judgment

-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY WRIT PETITION NO. 4559 OF 2020 (GM-CPC) BETWEEN:
1. RAGHAVENDRA S/O T.D. YOGISH AGED ABOUT 36 YEARS.
2. RAVIKARAN S/O T.D. YOGISH AGED ABOUT 32 YEARS.
BOTH ARE RESIDING AT KAVADAGI STREET TARIKERI TOWN, TQ TARIKERE DIST CHIKMAGALUR PINCODE - 577 228. …PETITIONERS (BY SRI DESAI SHARANABASAPPA VIRANNA, ADV.) AND:
Digitally signed        T.D. SRINIVAS
by NANDINI M            S/O LATE T.V. DASAPPA
S                       SINCE DECEASED BY LRS.
Location: HIGH COURT OF 1. T.D. JAYARAM KARNATAKA S/O LATE DASAPPA AGED ABOUT 70 YEARS RESIDING AT NO 10 15TH CROSS, 20TH MAIN J.P. NAGAR, BENGALURU - 560 078. SMT. SHARADAMMA W/O S.R. CHANDRASHEKAR DIED ON 05-05-2012 DEATH CERTIFICATE PRODUCED HEREIN, NOTE IN LOWER COURT NO LRS ON RECORD & NOT -2- DELETED IN CAUSE TITLE HENCE NOTICE NOT REQUIRED AND IT MAY BE DISPENSED.
2. SMT. KAVERI W/O LINGADEVARU AGED ABOUT 66 YEARS RESIDING AT NO.72 14TH MAIN, 2ND PHASE WEST OF CHORD ROAD BENGALURU - 560 080. …RESPONDENTS (BY SRI H.T. NATARAJ, ADV., FOR R-1; R-2 SERVED & UNREPRESENTED) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE

CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER

DATED 09.12.2019 (ANNX-J) PASSED BY THE SENIOR CIVIL JUDGE AND PRL. JMFC, TARIKERE ON I.A.NO.15 FILED IN RA NO.71/2018. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

ORAL ORDER

1. Defendant Nos.1 and 2 have filed this writ petition under

Article 227 of the Constitution of India with a prayer to set- aside the order dated 09.12.2019 passed by the Court of Senior Civil and Principal JMFC, Tarikere, in RA No.71/2018 allowing IA No.15 which was filed in OS No.206/2007.

2. Heard the learned counsel for the parties.

3. Suit in OS No.206/2007 was filed before the jurisdictional

Civil Court at Tarikere by respondents herein and in the said -3- suit, IA No.15 was filed by them under Order VI Rule 17 of CPC with a prayer to amend the plaint. The said application was dismissed by the Trial Court by order dated 10.07.2017. The same was assailed by the plaintiffs before this Court in WP No.35986/2017. The said writ petition was disposed off reserving liberty to the petitioners therein to challenge the

order dated 10.07.2017 passed on IA No.15 as provided under

Section 105 of CPC before the Appellate Court in the event of he filing an appeal against the decree to be passed in the suit. After disposal of WP No.35986/2017, the Trial Court had dismissed OS No.206/2007 and thereafter, RA No.71/2018 was filed by the plaintiff challenging the judgment and decree passed in OS No.206/2007. In the said appeal, the First Appellate Court has passed the order impugned allowing IA No.15 which was filed in OS No.206/2007. Being aggrieved by the same, defendants are before this Court.

4. Section 105 of CPC reads as follows:- "105. Other orders.-(1) Save as otherwise expressly provided, no appeal shall lie from any

order made by a Court in the exercise of its original

or appellate jurisdiction; but where a decree is -4- appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

(2) Notwithstanding anything contained in sub-

section (1), where any party aggrieved by an order

of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."

5. The aforesaid provision of law provides that in an appeal

which is filed challenging any decree, orders passed on any interlocutory application, during the pendecny of the suit, which affect the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. Considering this provision of law, this Court while disposing off WP No.35986/2017 had reserved liberty to the petitioners/plaintiff No.1 to raise the grounds as provided under Section 105 of CPC in the proposed appeal in the event, a decree is passed against him. The Appellate Court has failed to appreciate this aspect of the matter and has erred in passing the order impugned by allowing IA No.15 which was filed in OS No.206/2007. IA No.15 was dismissed by the Trial Court by order dated 10.07.2017 -5- and the said order was unsuccessfully challenged by plaintiff No.1 in WP No.35986/2017. The First Appellate Court has misunderstood and misread Section 105 of CPC and has erred in passing the order impugned.

6. At this juncture, learned counsel for respondent No.1 submits that liberty may be reserved to the respondents to file a fresh application under Order VI Rule 17 of CPC before the First Appellate Court.

7. The said submission of learned counsel for respondent No.1 is placed on record.

8. The writ petition is allowed. The impugned order dated

09.12.2019 passed by the Court of Senior Civil and Principal JMFC, Tarikere, in RA No.71/2018 allowing IA No.15 which was filed in OS No.206/2007, is set-aside, with liberty as prayed for. Sd/- (S VISHWAJITH SHETTY) JUDGE DN List No.: 1 Sl No.: 29

Same Court & Year Karnataka · 2025 Same Parties Raghavendra vs T D Srinivas Same Judge S Vishwajith Shetty