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1997 DIGILAW 5 (CAL)

Bijaya Acharya v. Radhika Bala Mondal

1997-01-07

BIJITENDRA MOHAN MITRA

body1997
JUDGMENT The instant revisional application at the motion stage is taken up for hearing on contest in presence of the caveators being directed against Order No. 36 dated 30.11.96 passed by the Assistant District Judge, Asansol in connection with Misc. Case No. 207 of 1994 arising out of a suit being Title Suit No. 33 of 1993. The said Misc. Case arises out of a proceeding under Order 9 Rule 13 of the Code of Civil Procedure and by a composite order both the miscellaneous proceedings as referred to as well as another petition under Order 1 Rule 10 sub-rule (2) have been disposed of. Here the admitted position is that in a suit for partition a preliminary decree has been passed and a final decree is a waiting to be passed. After the passing of the preliminary decree and during the period of interrugnum resulting in passing of the final decree, a petition under Order 1 Rule 10(2) C.P.C. has seen the light of the day in the proceeding. 2. Mr. Bakshi, learned Counsel appearing on behalf of the petitioners, has assailed the rejection of the petition under Order 1 Rule 10 (2) C.P.C. The entire object of Mr. Bakshi’s clients is to enter into the arena of legal combat after the preliminary decree is passed on, inter alia, the allegation about non-inclusion of necessary co-sharers of the property in a suit for partition. A suit for partition is a special type of suit which has two stages. At the first stage, when the preliminary decree is passed, the rights of the parties are determined by way of determination of their shares. The allocation of shares commensurate with proportionate shares in the preliminary decree is required to be made at the second stage of controversy leading to the passing of the final decree. So far as the dispute regarding shares is concerned, that is determined and is likely to be set at rest after the curtain of the controversy is dropped with the passing at the preliminary decree. The controversy raging from the filing of the wit after the passing of the preliminary decree is about the determination of shares and resolution of disputes relating to shares and in the second chapter of the proceeding allotment is made in terms of the shares which is to be determined at the time of passing of the final decree. The controversy raging from the filing of the wit after the passing of the preliminary decree is about the determination of shares and resolution of disputes relating to shares and in the second chapter of the proceeding allotment is made in terms of the shares which is to be determined at the time of passing of the final decree. In the impugned order the concerned Judge seems to have adumbrated in prolixity without being conscious of the nature of the suit being a suit for partition and it cannot be said that till the final decree is passed, the suit is not pending. The suit does not terminate with the passing of the preliminary decree but dispute is set at rest about determination of shares, In terms of the language of Order 1 Rule 10(2) C.P.C., it has been mentioned that Court may at any stage of the proceedings strike out or add parties when the presence of such parties becomes necessary for the Court to factually and completely adjudicate upon and settle the question involved in the suit. Here the question to be settled in a suit for partition upto the passing of the preliminary decree is about determination of shares and not about allotment. Once the shares are determined the same cannot be reopened unless with passage of time there is diminution or extension of the number of shareholders because of intervening circumstances of death and transfers from lawful owners. For the purpose of effective adjudication of controversy the preliminary decree cannot be reopened excepting as indicated hereinbefore. In this context, Mr. Bakshi, learned Advocate for the petitioners, has placed. reliance in the well-known decision of (1) Phoolchand & Anr. v. Gopi Lal reported in AIR 1967 SC 1470 and particular attention of this Court has been drawn to the passage contained in Paragraph 7 thereof. The Supreme Court in the said judgment has opined that there can be necessity for passing of more than one preliminary decree if the circumstances justify the same when after the preliminary decree some parties die and shares of other parties are augmented by transfer. The Supreme Court in the said judgment has opined that there can be necessity for passing of more than one preliminary decree if the circumstances justify the same when after the preliminary decree some parties die and shares of other parties are augmented by transfer. The Supreme Court has made also a pertinent observation that even if it transpires after the preliminary decree which necessitates change of shares, the Court can and should do it to take into account the cumulative effect of oscillation of shares with changing circumstances resulting in change of numbers of the co-sharers flowing from natural phenomena like death. Even if a transfer takes place, it can result in fresh computation of shares but it cannot arrogate into the domain of determination of shares of the respective parties. Mr. Bakshi with his usual expertise has laid emphasis on the expression “circumstances” justifying the passing of a second preliminary decree and, according to Mr. Bakshi, the catena as referred to in the relevant paragraph of the judgment is illustrative in nature and not exhaustive. This Court has given anxious consideration to the well-thought submissions of Mr. Bakshi and it is of opinion that circumstances justifying the passing of a preliminary decree as circumscribed by the Supreme Court are due to death, transfer and/or some such analogous events of like nature for which the Court has to ponder over the connotation “ejusdem generic”. The circumstances justifying the passing of the second preliminary decree as illustrated by the Supreme Court are exhaustive subject to extension of events of like nature and of similar type and not of some such events or circumstances which are qualitatively different. Therefore, this Court is constrained to reject the submissions of Mr. Bakshi after recording its appreciation of the merit of presentation of the said submissions. This Court is also made to ponder over the other aspect that if by way of a petition for addition of parties a party is allowed to reopen a preliminary decree, then the said party may be inhibited in the same suit to render proper evidence to have the decree reopened. This Court is also made to ponder over the other aspect that if by way of a petition for addition of parties a party is allowed to reopen a preliminary decree, then the said party may be inhibited in the same suit to render proper evidence to have the decree reopened. The remedy which the petitioners may have is by way of a full-fledged suit for declaration that the preliminary decree is not binding on them and/or it is vitiated by fraud but the issues emanating therefrom cannot constitute the same issues which are likely to be discerned as issues of fact and issues of law after dissection of the provisions of Order 14 Rule 1 C.P.C. This Court does not appreciate the laborious effort to reach the main thoroughfare for obtaining relief by way of a bid to enter into a bye-lane which ultimately turn out to be a futile effort. Therefore, thus Court though does not agree with the reasoning offered by the learned Judge because of misappreciation of the nature of the said suit agreed with the conclusion of the learned Judge, therefore, it cannot. interfere with the conclusion. Accordingly, the revisional application stands dismissed on context.