THIMMAPPA SHETTY Vs. SHAMBHAVI SHETTY

JUDGEMENT

(1.) Petitioner being the first defendant in a partition suit in O.S.No.108/2017 is unhappy with the order of the learned Judge of the Court below, dated 23.10.2020 whereby his proposed Issue Nos.2 - 7 vide application in I.A.No.14 filed under Order XIV Rule 5 r/w Section 151 of CPC, 1908. After service of notice, the respondent-plaintiff having entered appearance through his counsel, resists the writ petition making submission in justification of the impugned order more particularly on para 9 thereof.

(2.) Having heard the learned counsel for the parties and having perused the petition papers, this Court is substantially in agreement with the reasoning of the learned Judge of the Court below as given at para 9 of the impugned order which reads as under:

(3.) Learned counsel for the petitioner vehemently contends that in terms of Order XIV Rule 5 r/w Order XV Rule 1 of CPC where there is an assertion of a question as to fact or law, the Court has to frame the issue raised and therefore, non-framing one infects the impugned order; the proposition of law canvassed at the Bar same appears to be attractive at the first blush; but a deeper examination shows its uninvokability in the fact matrix of the case, inasmuch as admittedly petitioner has derived considerable benefit under the subject partition deed and therefore he is estopped from proposing the additional issues in question, which if framed eventually warrant its binding nature.