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2010 DIGILAW 109 (KAR)

Sakshi Suresh v. Suresh @ Surendra

2010-01-27

ARAVIND KUMAR, K.L.MANJUNATH

body2010
JUDGMENT This is a glaring example how an ordinary litigant would be made to suffer either on account of wrong advise given to him or on account of the folly of the litigant. The appellant was plaintiff in O.S. No. 63/2003 on the file of II Addl. Civil Judge (Sr. Dn), Belgaum. She file a suit for partition and separate possession claiming 1/3rd share in all the plaint schedule properties. She also sought a declaration to declare the family arrangement made in the year April 1999 does not bind her. The Trial Court has decreed the suit on 13/7/2005 declaring that the family arrangement made in the month of April 1999 does not bind the plaintiff and the same is null and void. The court further granted a decree of 1/3rd share in favour of the plaintiff as per her prayer in the plaint. The court has also directed the office to draw the preliminary decree in terms of the judgment dated 13/7/2005. This judgment is called in question in this appeal by the plaintiff, who has succeeded in full. The appeal is of the year 2006. The matter is listed before the court for non-filing of paper book. At this stage the learned counsel appearing for the learned counsel of appellant requests the court to grant a week’s time to seek dispensation to file the paper book. In this background we have perused the entire record of the trial court. On perusal of the judgment of the trial court we are of the opinion that the appeal filed by appellant is not maintainable since there is no cause of action for the appellant as the Trial court has granted the relief in terms of the prayer in the plaint. Therefore, we are of the opinion that due to ill-advise given to the appellant, the present appeal is filed and unnecessarily the court time is taken by the appellant and his counsel. In the circumstances, we are of the opinion that the appeal deserves to be dismissed with costs. At this stage the learned counsel for appellant submits that the appellant is not aggrieved by the judgment of the trial court and he submits that the decree has not been drawn by the office on the ground that the stamp paper has not been furnished to draw the preliminary decree. At this stage the learned counsel for appellant submits that the appellant is not aggrieved by the judgment of the trial court and he submits that the decree has not been drawn by the office on the ground that the stamp paper has not been furnished to draw the preliminary decree. He has not produced any order of the court below before us. Be that as it may, even if any order is passed either by the ministerial staff or by the judge concerned calling upon the appellant to produce the stamp duty, it is not for the appellant to file an appeal under section 96 of CPC, at best she can challenge in a manner known to law. Therefore, this appeal is dismissed with cost of Rs.5,000/-. The same shall be recovered as an arrears of land revenue from the appellant.