JUDGMENT

(Prayer: Appeal Suit filed under Section 96 and Order XLI Rules 1 and 2 of Civil Procedure Code against the order of the learned Principal District Judge, Coimbatore made in unnumbered O.S.CFR.No.17705 of 2009, dated 19.11.2009 rejecting the plaint.)

1. This Appeal Suit is filed against the judgment and decree, dated 19.11.2009, in and by which, the plaint filed by the plaintiff in O.S.(CFR).No.17705 of 2009, was rejected by the Trial Court.

2. The suit is filed with a prayer for partition to divide the suit property into six equal shares and to allot 1/6th share to the plaintiff. The case of the appellant / plaintiff is that earlier, in respect of the properties of the family members, there was a suit for partition in O.S.No.867 of 1995 on the file of the learned Subordinate Judge, Coimbatore, in which the present suit property was also a subject matter as Schedule-III therein. The said suit was referred for arbitration and the learned Sole Arbitrator passed a preliminary award on 25.08.2004. Aggrieved by the same, an application under Section 34 of the Arbitration and Conciliation Act, 1996 in A.O.P.No.197 of 2004 was filed and the learned Additional District Judge, Coimbatore, by an order, dated 18.07.2008, dismissed the same. Aggrieved thereby, C.M.A.No.2797 of 2008 was filed before this Court and a Division Bench of this Court, by an order, dated 22.12.2008, set aside the award and remanded the matter back to the learned Arbitrator.

3. After the remand, in respect of the present property, it was pleaded before the learned Arbitrator that the property was bequeathed in favour of Sringeri Mutt, by a Will, dated 08.01.1992 and the Will was also contested. The appellant / plaintiff also sought to implead the first respondent / defendant in the present suit namely, Sringeri Mutt in the arbitration proceedings before the learned Arbitrator. The learned Arbitrator dismissed the impleading application on 07.05.2009. Thereafter, a final award was passed on 25.08.2004. In the said award, the Arbitrator held that as far as the schedule property is concerned, he cannot decide the issue in the absence of the Sringeri Mutt being a party to the arbitration and therefore, the learned Arbitrator did not delineate any share in respect of the schedule property and left the matter open by giving liberty to the appellant / plaintiff to take appropriate proceedings for recovery of her share in the schedule property is concerned. Therefore, the present suit is filed for partition in respect of the suit schedule property.

4. The Trial Court, upon consideration of the case of the appellant / plaintiff, had taken a view that since partition has been prayed in the earlier suit in respect of the suit property also and that the same having been referred to arbitration, even if the learned Arbitrator had dismissed the application for impleading, the appellant / plaintiff''s remedy is to file an appeal as against the order of dismissal and the present suit is not legally maintainable and rejected the plaint.

5. Heard Mr.I. Abrar Mohamed Abdullah, learned Counsel for the appellant. There is no representation by the Learned Counsel who entered appearance on behalf of the respondents 2 to 5. Even though notices were served on the first and seventh defendants, they have not appeared before this Court. On consideration of the grounds of appeal and the records of the case and the submissions made by the learned Counsel for the appellant / plaintiff, the point that arises for consideration is that whether or not the Trial Court was right in rejecting the plaint in view of the earlier arbitration proceedings ?

6. On a perusal of the plaint and the averments made therein, it is averred that after the matter being referred by the Court, the learned Arbitrator did not implead Sringeri Mutt as a party to arbitration as the Sringeri Mutt was not a party in the Original Suit which was referred to him for arbitration. In that view of the matter, it is contended in