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2014 DIGILAW 1636 (RAJ)

Ramchandra v. Jagdish Alia Lala

2014-10-09

SANGEET LODHA

body2014
JUDGMENT 1. - This writ petition is directed against order dated 17.9.11 passed by the Additional District Judge No.2, Udaipur in Civil Suit No.62/11, whereby an application preferred by the petitioner plaintiff under Section 151 CPC seeking directions for auction of the property, a shop, which is subject matter of the suit for partition, stands rejected. 2. The relevant facts are that the petitioner-plaintiff filed a suit for partition of property, a shop, alleged to be in joint ownership and occupation of the petitioner-plaintiff and the respondent-defendant. The suit is being contested by the respondent-defendant taking the stand that the plaintiff has filed the suit only with regard to the disputed shop whereas, there are many more properties which are also required to be partitioned. The respondent-defendant also filed a counter claim and claimed partition of all the joint properties. 3. During the pendency of the petition, the petitioner-plaintiff filed an application under Section 151 CPC stating therein that the joint ownership of the disputed shop is not in dispute and therefore, pending disposal of the suit, the same may be auctioned and the petitioner-plaintiff may be paid 50% of the amount. In the alternative, it was prayed that the respondent defendant may be directed to pay 50% of the market value of the shop to the petitioner-plaintiff. 4. The application has been rejected by the court below observing that apart from the disputed shop, the defendant has claimed partition of various other joint properties by way of the counter claim and therefore, the suit for partition has to be decided on the basis of the evidence to be led by the parties wherein in the first instance the preliminary decree shall be passed and only after consideration of the objections to be raised by the parties, the final decree can be passed. The court observed that there being dispute between the parties in respect of the various properties, at this stage, no order can be passed by the court for disposal of one property as per desire of one party. 5. The court observed that there being dispute between the parties in respect of the various properties, at this stage, no order can be passed by the court for disposal of one property as per desire of one party. 5. Learned counsel appearing for the petitioner contended that under the provisions of Order 12, Rule 6 CPC, the court is empowered to pass an order on the basis of admission of the fact either on the application of any party or of its own motion without waiting for determination of any other question between the parties and therefore, there being no dispute regarding the plaintiff and defendant having equal share in the disputed shop, there is no reason as to why the court should not pronounce the order in respect of the said property as prayed for. 6. On the other hand, the counsel appearing for the respondent supporting the order passed by the court below, submitted that there being a dispute in respect of various properties, subject matter of suit filed by the petitioner-plaintiff and the counter claim filed by the respondent-defendant, the question of the court passing an order regarding one property, does not arise. Learned counsel submitted that the partition decree has to be passed in respect of all the properties and therefore, the order impugned passed by the court below does not suffer from any error. 7. I have considered the rival submissions and perused the material on record. 8. It is true that the plaintiff has filed the suit for partition of the shop alleged to be in joint ownership and occupation of the plaintiff and the defendant. But then, the fact remains that by way of counter claim, the defendant has claimed partition of many other joint properties. Obviously, the decree of partition in respect of the various properties has to be passed by the court on the basis of the evidence to be led by the parties. The trial court was right in observing that in the first instance, the preliminary decree shall be passed and thereafter, the final decree for partition of the disputed properties by metes and bounds shall be passed. The trial court was right in observing that in the first instance, the preliminary decree shall be passed and thereafter, the final decree for partition of the disputed properties by metes and bounds shall be passed. In the considered opinion of this court, keeping in view the lis between the parties, no order could have been passed by the court in isolation for one property taking into consideration the admission of the parties that they have equal share therein. Even otherwise, the relief under Order 12, Rule 6 CPC is discretionary and the power has to be exercised by the court judicially taking into consideration the facts and circumstances of the case and the court is not bound to pass the decree on the basis of admission of the fact. 9. Suffice it to say that in the instant case, judicial discretion exercised by the court in refusing the relief as prayed for, does not suffer from any jurisdictional error so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 10. In the result, the petition fails, it is hereby dismissed. No order as to costs.Petition dismissed. *******