MULIMANI MARULAPPA Vs. MULIMANI SHANMUKAPPA

JUDGEMENT

(1.) This revision petition is by the petitioners in MC. No. 26/84 on the file of the Munsiff at Kudligi. Prior to the filing of the above petition before the Munsiff's Court, they were defendants 1 and 2 in O.S No. 230/1981 on the file of the said Court. The said 0 S. was filed by Mulimani Shanmukappa seeking partition of suit schedule properties on the ground that they were ancestrol properties and belong to the undivided joint Hindu family of the petitioners and the defendants. By a memo filed on 12-7-1984 to the effect that the suit may be dismissed as not pressed, the suit came to be dismissed by an order passed on 13-7-1984. Sometime thereafter the aforementioned miscellaneous petition was filed by defendants 1 and 2 seeking to recall the order of dismissal and restore the suit to file. That was accompanied by an application under Sec. 5 of the Limitation Act as there was 65 days delay in presenting that miscellaneous petition. The learned Munsiff after examining the reasons given for condoning the delay came to the conclusion that the delay was not properly explained and therefore refused to condone the delay. In the result, the miscellaneous petition itself came to be disposed of as not maintainable. Aggrieved by the same, the present revision petition is preferred under Sec. 115 of the C P C.

(2.) The only ground urged in this Court is that the suit should not have been dismissed as it was a suit for partition. In such a suit it is contended that all parties have the same rights and all should be treated as plaintiffs and therefore the order of dismissal was not proper at the instance of the plaintiff. Proposition is correct in law. The correctness of the proposition will depend on the facts of each case and the circumstances under which the suit is dismissed. But if the order of dismissal is bad in law. the proper course for the defendants who are aggrieved by such an order is to file an appeal against that order and not to seek a review to it.

(3.) Even otherwise I see, they have the same rights as the plaintiff to sue for partition. They are always at liberty to present the suit in their own right. Therefore, their approach itself was wrong apart from presenting the petition under Sec. 144 read with Sec. 151 of the C P.C. belatedly.