SUNANDA Vs. RAJANNA

JUDGEMENT

(1.) The petitioner, being the plaintiff in her suit inter-alia for a decree of partition and separate possession of the suit properties, is invoking the writ jurisdiction of this Court for assailing the order dated 02.12.2013, a copy whereof is at Annexure-E, made by learned trial Judge in O.S.No.162/2007 dismissing the suit against the contesting respondents herein. After service of notice, the respondents having entered appearance through their counsel resist the writ petition.

(2.) Learned counsel for the petitioner-plaintiff Sri.A.V.Gangadharappa argues that the impugned order has an error apparent on its face, inasmuch as the suit as against the respondents herein has been dismissed by the Court below on an issue which was suo motto framed when none of the contesting respondents had raised the question with regard to its maintainability. He submits that the Court below does not have justification to raise the said issue in the absence of any pleading with regard to the maintainability of the suit and especially when no Written Statement was filed by the contesting respondents. So arguing, he seeks allowing of the Writ Petition.

(3.) Per contra, learned counsel for the respondentdefendants contends that the impugned order dismissing the suit as against the respondents herein amounts to a decree within the definition of Sec. 2(2) of the Code of Civil Procedure, 1908 and therefore, the right of appeal avails under the provision of the Code of Civil Procedure which the petitioner has not availed nor has she explained the difficulty as to why she could not avail the same and therefore, the writ petition is liable to be dismissed on the ground of availability of alternate and more efficacious remedy.