Indira Vs Raghu Kotian

(NOTICE TO R18 & 19-DISPENSED WITH V/O DTD:29.03.2021; NOTICE TO R3, R5 TO R15-DISPENSED WITH V/O/DTD:12.01.2024; R1 & 17 ARE SERVED; V/O/DTD: 03.06.2025-WP AGAINST R2 & 16-DISMISSED AS ABATED)

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THIS WP IS FILED PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 15.03.2017 PASSED IN RP NO.NIL IN OS.NO.90/2010 ON THE FILE OF THE COURT OF THE PRL. CIVIL JUGE AND JMFC, UDUPI VIDE ANNX-A AND DIRECT THE TRIAL COURT TO RESTORE THE SUIT IN OS NO.90/2010 AND TO HEAR THE PLAINTIFF ON ADDITIONAL PRELIMINARY ISSUE NO.1 FRAMED IN OS NO.90/2010 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, UDUPI.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU

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ORAL ORDER

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None appears for the respondents despite service.

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In view of the fact that the matter is pending since the year 2017, the Court is taking up this matter.

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NC: 2026:KHC:133 WP No. 44301 of 2017

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HC-KAR

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The present petition has been filed petitioner/plaintiff No.3 under Article 227 of the Constitution of India, seeking to challenge an order dated 15.03.2017 in the Review Petition No.(Nil) passed by Principal Civil Judge and JMFC, Udupi(hereinafter referred to as the “Impugned Order”). The Review Petition was filed challenging a Judgment and Order dated 23.02.2005 in O.S.No.90/2010 passed by the Principal Civil Judge & JMFC, Udupi (hereinafter referred to as the “order passed in the Original Suit”).

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The order passed in the Original Suit while deciding the Additional Issue No.1 has rejected the plaint.

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The operative portion of the order in the Original Suit is as set out below:

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“In view of answering Addl.issue No.1 in the negative, the suit of the plaintiff is rejected”

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Against this order dated 23.02.2015, the

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petitioner/plaintiff No.3 filed a review petition setting out that the order dated 23.02.2015 suffers from an infirmity inasmuch as the order rejected the plaint, in view of the fact that court fee paid was not sufficient. The learned Trial Court by the order

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NC: 2026:KHC:133 WP No. 44301 of 2017

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HC-KAR

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dated 15.03.2017 rejected the review petition by holding that there is no error apparent on the face of the record and thus the question of review does not arise.

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A query has been put to learned counsel for the petitioner/appellant No.3 that since the plaint has been rejected, his remedy lies under a separate provision of law and that this petition is not maintainable.

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Learned counsel for the petitioner although fairly concedes that his remedy does lie, in the alternative, he submits that the Court still has jurisdiction under Article 227 of the Constitution of India to examine the case.

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This Court is unable to agree with the submission made by the petitioner’s counsel. Where a statute provides for a specific remedy, it is settled that the remedy should be exercised in law.

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Undisputedly, in the present case, a suit was filed for partition and separation of shares. The respondents /defendants appeared in the suit and filed the written statement denying that the petitioner was entitled to a share.

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NC: 2026:KHC:133 WP No. 44301 of 2017

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HC-KAR

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They further submitted that actual physical possession of the subject property was not with the plaintiffs but with the defendants.

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Based on the pleadings, the following issues were framed by the Trial Court.

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“1. Whether the plaintiffs prove that the Land Tribunal conferred occupancy right jointly in favour of Muthu Poojarthi, Annanya Poojary and Sanju Poojarthy in respect of suit A schedule properties?

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2. Whether the plaintiffs prove that that the plaintiffs and defendants are co-owners of the suit schedule properties?

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3. Whether the first defendant proves that suit is bad for non-joinder of necessary party?

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4. Whether the first defendant proves that the suit is bad for partial partition?

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5. Whether the first defendant proves that the suit schedule properties are libel to be divided as per the provisions of Aliyasanthana Law?

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6. Whether the plaintiffs are entitled for share as claimed in the plaint?

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7. What order or decree?”

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In addition, an Additional Issue was framed by the

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learned Trial Court on 16.02.2015 which is as follows:

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“1. Whether the Court Fee paid by the plaintiff is proper?

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2. What order or decree?”

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NC: 2026:KHC:133 WP No. 44301 of 2017

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HC-KAR

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By its order dated 16.02.2015, the learned Trial Court treated the issue No.1 as the preliminary issue and as stated above, after hearing the arguments on the preliminary issue, has rejected the plaint and it has held that although an opportunity was offered to the plaintiffs with regard to the issue of court fee, the plaintiffs have contended that court fee paid is sufficient. In addition, it has been held that the plaintiffs have been unable to show that they are in physical possession of the subject property. In view of the above, the learned Trial Court has rejected the plaint.

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As stated above, once a plaint is rejected, the remedy of the plaintiffs would be in filing an appropriate proceeding in accordance with law. However, instead, petitioner/plaintiff No.3 chose to challenge the order before this Court. In view of the availability of alternate remedy, this Court finds no reason to

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entertain this petition. The petition is accordingly dismissed.

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Digitally signed by TARA VITASTA GANJU Location: HIGH COURT OF KARNTAKA (TARA VITASTA GANJU) JUDGE

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YN List No.: 1 Sl No.: 4

Indira v. Raghu Kotian

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Indira v. Raghu Kotian

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