THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH A.S.No.991 OF 2010 JUDGMENT: (per B.PRAKASH RAO,J) This appeal at the instance of the plaintiff is filed under Section 96 C.P.C. inter alia seeking to assail the correctness of the order dated 03.11.2010 in G.R.No.2936 in an unnumbered O.S on the file of the Principal District Judge, Visakhapatnam rejecting the plaint and directing the appellant/plaintiff to approach the arbitrator by invoking the arbitration clause. We have heard the learned counsel for the appellant. Since the plaint was rejected at the threshold i.e., even before issuance of notices to the respondents/defendants, we feel that the matter can be disposed of even without issuing notices to the respondents herein. Briefly, the facts of the case are that in the suit the appellant/plaintiff sought for declaration that the registered sale deed executed by the first defendant in favour of the second defendant on 14.05.2008 in respect of plaint ‘A’ schedule property as illegal, void and does not bind him since the property was sold in under developed condition contrary to the development agreement-cum-general power of attorney and also for possession of the plaint ‘A’ and ‘B’ schedule properties. That apart, the appellant sought for permanent injunction directing the second defendant not to alienate the Plaint ‘A’ schedule property and against the third defendant, he sought not to release the plaint ‘B’ Schedule property, a part of ‘A’ schedule property to the first defendant. He also claimed alternative relief of directing defendants 1 and 2 to pay a sum of Rs.36,03,025/- towards his share of 65% of sale consideration and for damages. At the stage of processing the suit on the objection raised by the office and after hearing the appellant, the court below having regard to clause 11 of agreement between the parties which has been extracted in the order of the court below has held that the remedy of the appellant/plaintiff is only to approach the arbitrator and accordingly rejected the plaint. In support thereof, the court below placed reliance on the Division Bench Judgment of this Court in LAKSHMINAGAR HOUSING WELFARE ASSOCIATION Vs SYED FAMI @ SYED FAMIUDDIN.[1] But a perusal of the judgment reveals that it only pertains to payment of deficit court fee. That apart, the lower court has also placed reliance on a judgment of the Karnataka High Court in SMT ELIZABETH MATHEW Vs S.K.NARAYANA[2] wherein it was held that though the purchaser was a third party, he is bound by the arbitration agreement. Sri C. Subba Rao, learned counsel for the appellant sought to contend that the court below in fact did not take into consideration the settled decision of the apex court reported in N.RADHAKRISHNAN Vs. MAESTRO ENGINEERS AND OTHERS[3] which squarely covers the main controversy i.e., such bar does not exist to the appellant in laying the suit as sought for. We have considered the submissions which have been made elaborately by the learned counsel in this appeal and we are of the view that the court below rejected the suit at the threshold even before it is processed on the objection as to the arbitration clause and the remedy of arbitration being available to the appellant. Admittedly, no notice was issued to the respondents/defendants nor the suit has been numbered. Normally in a suit of comprehensive nature any such objection can possibly permitted to be raised or can be considered after the issuance of notices to the respondents/defendants rather than disposing of the same one sided. It is also well established that the rules or procedure are to aid the parties and hear them and dispose of any issue on merits in their presence rather than in their absence. This approach would only avoid further multiplication of proceedings. Therefore, we are of the view that the matter can be considered after processing the plaint, numbering it and after issuance of notices to the respondents and after their appearance. In the circumstances, leaving it open for the court below to consider the issue after hearing both sides and providing necessary opportunity, the order of the court below is set aside and the appeal is allowed. The matter is remitted to the court below with a direction to process the plaint and number it and dispose of the suit after hearing both sides in accordance with law. We also make it clear that the appellant is at liberty to comply with any other objection in regard to court fee. ________________ B.PRAKASH RAO,J ______________ G.CHANDRAIAH,J Dt. 19.01.2011 lvl THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH A.S.No.991 OF 2010 (per B.PRAKASH RAO,J) Dt. 19.01.2011 [1] 2010 (5) ALT 96 (DB) [2] AIR 1999 Karnataka 291 [3] 2010 1 SCC 72