- 1 - HC-KAR NC: 2026:KHC:5345 WP No. 21586 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MS. JUSTICE TARA VITASTA GANJU WRIT PETITION NO. 21586 OF 2022 (GM-CPC) BETWEEN: MR. SIRAJ REHAMATHULLA AGED ABOUT 69 YEARS S/O REHAMATHULLA PRESENTLY R/AT NO.S-01 SECOND FLOOR, EASTERN COURT, NO.24, COLES ROAD BANGALORE -560 005. …PETITIONER (BY SMT.KOMAL KUMARI, ADVOCATE FOR SRI. REGO L P E., ADVOCATE) AND: 1. MESSRS GOLD ENTERPRISES A FIRM CONSTITUTED UNDER THE PROVISIONS OF THE INDIAN PARTNERSHIP ACT 1932 WITH ITS OFFICE AT NO.79/1, 2ND CROSS, LAVELLE ROAD, BANGALORE -560 001 PRESENTLY AT 3RD FLOOR, NO.4, 5 `B' CROSS, HUTCHINS ROAD, ST THOMAS TOWN, BANGALORE -560 005. REPRESENTED BY ITS PARTNER MR MOHAMED SHABBIR. - 2 - HC-KAR NC: 2026:KHC:5345 WP No. 21586 of 2022 2. MR MOHAMED SHABBIR, AGED ABOUT 53 YEARS, SON OF HAJI ISMAIL SAIT, R/AT GOLD CARAT, CLEVELAND ROAD, FRAZER TOWN, BANGALORE -560 005, PRESENTLY AT 3RD FLOOR, NO.4, 5 `B' CROSS, HUTCHINS ROAD, ST THOMAS TOWN, BANGALORE -560 005. 3. MRS NIKHAT SHABBIR, AGED ABOUT 51 YEARS, W/O MOHAMED SHABBIR, R/AT GOLD CARAT, CLEVELAND ROAD, FRASER TOWN, BANGALORE -560 005, PRESENTLY R/AT 3RD FLOOR, NO.4, 5 `B' CROSS, HUTCHINS ROAD, ST THOMAS TOWN, BANGALORE -560 005. 4. MESSRS SATTVA DEVELOPERS PRIVATE LIMITED SATTAVA GROUP A BODY INCORPORATED UNDER THE PROVISIONS OF THE INDIAN COMPANIES ACT 1956, WITH ITS REGISTERED OFFICE AT 4TH FLOOR, SALARPURIA WINDSOR, NO.3, ULSOOR ROAD, BANGALORE -560 042 REPRESENTED BY ITS MANAGING DIRECTOR /CHAIRMAN MR BIJAY AGARWAL. …RESPONDENTS (NOTICE TO R-4 IS DISPENSED WITH VIDE ORDER DATED 3.11.2022) - 3 - HC-KAR NC: 2026:KHC:5345 WP No. 21586 of 2022 THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 26.07.2022 AT ANNEXURE-A PASSED IN MISC.NO.66/2012 ON THE FILE OF THE HONBLE 3RD ADDITIONAL SENIOR CIVIL JDUGE, BANGALORE RURAL DISTRICT AND BE PLEASED TO RESTORE MISC NO.66/2012 TO THE FILE OF THE HONBLE 3RD ADDITIONAL SENIOR CIVIL JUDGE BANGALORE RURAL DISTRICT FOR DISPOSAL IN ACCORDANCE WITH LAW, SIMULTANEOUSLY GRANTING TO THE PETITIONER HIS COSTS, COUNSELS FEE AND SUCH FURTHER OR OTHER RELIEFS AS THIS HON'BLE COURT DEEMS FIT OR THE NATURE OF THE CASE REQUIRES. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU ORAL ORDER 1. The present petitioner seeks to challenge an order dated 26.07.2022 passed by the learned III Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru Rural, (hereinafter referred to as "the Trial Court"). By the Impugned Order, an application filed under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 (hereinafter referred to as "the CPC") has been dismissed. - 4 - HC-KAR NC: 2026:KHC:5345 WP No. 21586 of 2022 2. The learned counsel for the petitioner submits that an application was filed under Order XXXIX Rule 2-A of the Code of Civil Procedure, 1908, by the petitioner stating that the respondent No.1 had breached the interim order granted by the Trial Court on 29.10.2011. However, the application/petition was dismissed by the learned Trial Court giving a finding that the same was not maintainable. 3. The attention of the learned counsel for the petitioner is drawn to the provisions of Order XLIII Rule 1(r) of the CPC, which provides for an appeal against such an order and reads as follows: "Order XLIII Rule 1. Appeal from orders.—An appeal shall lie from the following orders under the provisions of section 104, namely xxxx xxxx (r) an order under rule 1, rule 2, rule 2A, rule 4 or rule 10 of Order XXXIX." [Emphasis Supplied] 4. A plain reading of the aforegoing provision shows that for any order passed under Rules 1, 2, 2-A, 4 or Rule 10 of Order XXXIX would be an appealable order. It is no longer res integra that where the statute provides for a remedy of appeal, the - 5 - HC-KAR NC: 2026:KHC:5345 WP No. 21586 of 2022 recourse to such remedy must be taken. The Supreme Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabi and others Vs. Tuticorin Educational Society and others1 has held that, where a petition under Article 227 of the Constitution of India is filed challenging an order on an application filed under Order XXXIX of the CPC, such petition is not maintainable. The relevant paragraphs are extracted below: “11. Secondly, the High Court ought to have seen that when a remedy of appeal under Section 104(1)(i) read with Order 43, Rule 1(r) of the Code of Civil Procedure, 1908, was directly available, Respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu v. S. Chellappan [A.Venkatasubbiah Naidu v. S. Chellappan,2], this Court held that “though no hurdle can be put against the exercise of the constitutional powers of the High Court, it is a well- recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a constitutional remedy”. 12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before civil courts in terms of the provisions of Code of Civil Procedure, and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules 1 (2019) 9 SCC 538 2(2000) 7 SCC 695 - 6 - HC-KAR NC: 2026:KHC:5345 WP No. 21586 of 2022 and the fora provided therein happen to be quasi- judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which Respondents 1 and 2 invoked the jurisdiction of the High Court. This is why, a 3-member Bench of this Court, while overruling the decision in Surya Dev Rai v. Ram Chander Rai [Surya Dev Rai v. Ram Chander Rai3, pointed out in Radhey Shyam v. Chhabi Nath [Radhey Shyam v. Chhabi Nath4, that “orders of civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts”. 13. Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self-imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.” [Emphasis Supplied] 5. Concededly, the statute provides for a remedy of an appeal against such an order. 3 (2003) 6 SCC 675 4(2015) 5 SCC 423 : (2015) 3 SCC (Civ) 67 - 7 - HC-KAR NC: 2026:KHC:5345 WP No. 21586 of 2022 6. The petitioner, however, failed to exercise this remedy. The petition is accordingly dismissed. Liberty is however granted to the petitioner to take appropriate steps in accordance with law for redressal of his grievances. (TARA VITASTA GANJU) JUDGE BK/BMV* List No.: 1 Sl No.: 5 Digitally signed by TARA VITASTA GANJU Location: HIGH COURT OF KARNTAKA