JUDGMENT : Ashoke Kumar Dasadhikari, J. Order impugned No.74 dated 11th May, 2015 passed by the learned Judge, 11th Bench, City Civil Court at Calcutta in Title Suit No.1560 of 2004 refusing to pass a preliminary decree of partition on admission made by the defendant/opposite party, in terms of Order 12, Rule 6 of the Code of Civil Procedure is under challenge in this revisional application. 2. Learned Counsel appearing for the plaintiff/ petitioner submits that a suit for partition was instituted by the plaintiff/petitioner. The defendant/opposite party admitted plaintiff/petitioners half share in the property by filing written statement with a counter-claim praying for specific performance of contract as regards that 50% share of the plaintiff/petitioner. 3. Learned Counsel submits that filing of counter-claim in no way prevent the learned Court below to pass a preliminary decree in the partition suit and in case a preliminary decree is passed on the basis of admission, in no way the counter-claim made by the defendant/opposite party would be defeated and/or cannot be adjudicated subsequent to that preliminary decree if passed by the learned Court below. 4. Learned Counsel submits that prayer for preliminary decree was made on 9th April, 2013 and the learned Court below considered the prayer. However, the learned Court below was of the view that prayer for preliminary decree was made without filing any application under Order 12, Rule 6 of the Code of Civil Procedure. 5. Learned Counsel drew attention of this Court that the learned Court below on that occasion passed an order recording that the question of partibility of disputed property will arise only after passing of preliminary decree and if the parties fail to effect partition amicably by metes and bounds, when there is a report of the Commissioner that the property is not partiable. In case the property is not partiable then the necessary procedure will follow as per law and the learned Court below expressed its view that this is not the stage to decide whether the suit property is partiable or not. 6. Learned Court below expressed that filing of suit for counterclaim for specific performance of contract by the defendants ipso facto prove that the defendants admit plaintiffs share over the suit property. 6. Learned Court below expressed that filing of suit for counterclaim for specific performance of contract by the defendants ipso facto prove that the defendants admit plaintiffs share over the suit property. However, in absence of any application under Order 12, Rule 6 of the Code of Civil Procedure from the side of the plaintiff for passing preliminary decree on admission the Court was unable to pass any order. It was also observed that in order to avoid further delay parties are directed to come ready. Parties whoever have possession of certified copy of relevant papers of the suit are directed to produce the same before the Court on the date fixed. In view of such observations made by the learned Court below, the plaintiff/petitioner moved an application under Order 12, Rule 6 of the Code of Civil Procedure with a prayer to pass a preliminary decree declaring share of the plaintiff and the defendant to the extent of 50% each in respect of the suit property on admission by the defendant/opposite party. 7. Learned Counsel submits that defendant/opposite party filed his objection to the application. However, the defendant/opposite party denied the alleged claim of admission. It was stated that schedule in the plaint is totally incomplete nor even mentioning the premises number therein. It was also stated that the suit property is not partiable and the suit was filed wrongly and illegally and the instant suit was filed upon obtaining earlier decree wrongfully by several parties therein, in an earlier suit being Title Suit No.109 of 1985 by collusion of the plaintiff with such several parties when defendant was kept in dark. It was stated that the defendant has made counter-claim to the effect that the suit property has been agreed to be sold by the plaintiff to the defendant and such agreement was entered into on or about 11th October, 2004 and the plaintiff has accepted from the defendant in terms of the agreement for sale Rs. 25,000/- only etc. 8. It was stated that the defendant has made counter-claim to the effect that the suit property has been agreed to be sold by the plaintiff to the defendant and such agreement was entered into on or about 11th October, 2004 and the plaintiff has accepted from the defendant in terms of the agreement for sale Rs. 25,000/- only etc. 8. Learned Counsel drew attention about the statements made by the defendant/opposite party to the following effect "the defendant thereafter received the notice of institution of the instant suit and that under the circumstances the defendant was entitled to specific performance of the agreement between the plaintiff and the defendant for sale of the suit property being agreement dated 11th October, 2004 by directing the plaintiff to execute and register sale deed in favour of the defendant in respect of half share in the suit property". 9. Learned Counsel submits that the objection filed by the defendant/opposite party emphasised the counter-claim he has alleged. 10. Learned Counsel submits that in view of the specific admission of the plaintiffs half share in the property there should be a preliminary decree in favour of the plaintiff/petitioner. Unless the petitioners share is determined there is no question of allowing any claim of specific performance of agreement. 11. Learned Counsel further submits even if a preliminary decree is passed it would not be a hindrance and/or impediment to adjudicate the counter-claim of the defendant/opposite party, which he has made before the learned Court below. 12. Learned Counsel submits that after passing preliminary decree in terms of Order 12, Rule 6 there would be ample scope to adjudicate the counter-claim. 13. Learned Counsel also submits that there is no law which prevents adjudication of counter-claim of the defendant/opposite party after passing of preliminary decree. 14. Learned Counsel submits that the previous order was not in question. Earlier the learned Court below have accepted the submissions and also granted opportunity to the plaintiff/petitioner to take appropriate step and it was specific observation, unless a proper application is made under Order 12, Rule 6 no such preliminary decree could be passed. 15. 14. Learned Counsel submits that the previous order was not in question. Earlier the learned Court below have accepted the submissions and also granted opportunity to the plaintiff/petitioner to take appropriate step and it was specific observation, unless a proper application is made under Order 12, Rule 6 no such preliminary decree could be passed. 15. Learned Counsel then submits that the learned Court below failed to appreciate the scope of Order 12, Rule 6 and erroneously came to a conclusion that without considering the counter-claim of the defendant along with the claim of the plaintiff for partition only a preliminary decree for half share of the plaintiff cannot be passed and it was erroneously observed that after separate share of the plaintiff is declared in the preliminary decree then the counter-claim of the defendant may be frustrated and learned Court below overlooked the said matter. 16. Learned Counsel submits that the suit filed by the plaintiff/petitioner is for partition and claim of the possession of the defendant/opposite party was denied specifically by the petitioner. 17. Learned Counsel drew attention of this Court about three averments made by the plaintiff in the objection to the counter-claim of the defendant wherein it was specifically stated that defendant was never given any possession, occupation and control of the property of Lot C of the suit premises at 2, Abhoy Halder Lane, Kolkata-700012 by the plaintiff as alleged. Plaintiff also specifically stated that he has not removed his belongings from the suit premises and question of removing his belongings from the suit premises does not arise. 18. Learned Counsel submits that the order impugned is not sustainable in law and therefore, the order impugned be set aside and the learned Court below be directed to allow the application and pass a preliminary decree in favour of the plaintiff/petitioner. 19. Learned Counsel also submits that there cannot be any difficulty by the learned Court below to adjudicate upon the counterclaim made by the defendant/opposite party even after preliminary decree passed by the learned Court below. 20. On the contrary, the learned Counsel representing the defendant/opposite party submits that passing of preliminary decree without considering the counter-claim of the defendant/opposite party would definitely prejudice the defendant. 21. Learned Counsel submits that the defendant by filing his written objection specially claimed that possession was given to the defendant and the property is not partiable. 20. On the contrary, the learned Counsel representing the defendant/opposite party submits that passing of preliminary decree without considering the counter-claim of the defendant/opposite party would definitely prejudice the defendant. 21. Learned Counsel submits that the defendant by filing his written objection specially claimed that possession was given to the defendant and the property is not partiable. It was also submitted that before passing preliminary decree adjudication is necessary. In case counter-claim fail then the question of passing preliminary decree would arise. He has referred Order 8, Rule 6A of the Code of Civil Procedure and submitted that the defendant is entitled to file his counter-claim which is to be adjudicated simultaneously at the time of passing preliminary decree. 22. Learned Counsel submits that counter-claim shall have the effect of a cross suit so as to enable the Court to prevent a final judgment in the same suit both on original claim and on the counter-claim. 23. Learned Counsel further submits once preliminary decree is passed then the subsequent stages are all automatic and the requirement of appointment of commissioner would arise and thereafter final decree would be passed. According to him, the preliminary decree would in effect frustrate the claim of the defendant/opposite party. 24. Learned Counsel further refers sub-Section (2) of Section 2 of the Code of Civil Procedure, which define decree. He has submitted that decree means the formal expression of adjudication. 25. Learned Counsel submits that unless the matter is properly adjudicated the counter-claim of the defendant/opposite party, no preliminary decree can be passed. 26. Learned Counsel cited a judgment reported in AIR 1988 Delhi 155 (Sri Madhi Vibhag Khand Udyog Sahakari Mandli Ltd. and anr. v. Union of India and anr.) paragraph 6 and he has submitted that preliminary decree for partition is final decision. 27. Learned Counsel submits that counter-claim cannot be separated. He also cited another decision reported in AIR 1963 S.C. 992 (Venkata Reddy and ors. v. Pethi Reddy) and submitted that preliminary decree is not a tentative decree but it is final in nature and preliminary decree if passed would be unalterable. He submits that after preliminary decree everything is automatic. 28. Learned Counsel also referred the provisions under Section 62 of the Contract Act. He also submits that the defendant/opposite party is not altering the contract. Original contract is to be performed. 29. He submits that after preliminary decree everything is automatic. 28. Learned Counsel also referred the provisions under Section 62 of the Contract Act. He also submits that the defendant/opposite party is not altering the contract. Original contract is to be performed. 29. Learned Counsel submits that under no circumstances there should be any preliminary decree. Therefore, according to him, learned Court below have passed a lawful order which should not be interfered with. 30. Learned Counsel also referred a decision of the learned Single Judge of this Hon'ble Court delivered in case of (Subir Kumar Halder v. Probir Kumar Halder) (C.O. 1704 of 2011 with C.A.N. 7390 of 2012) dated 6th September, 2012 and submitted that the same issue was under consideration before the learned Single Judge and the learned Single Judge has expressed his views against passing of preliminary decree. 31. Considered the submissions made by the learned Counsel appearing for the parties. It is on record that the plaintiff/petitioner has filed a suit for partition and in that partition suit the defendant/opposite party filed his written objection as well as counter-claim seeking specific performance of contract entered into by and between them. In the written objection defendant by way of his pleadings admitted 50% share of the plaintiff in the suit property. The prayer for passing preliminary decree was made and this point was heard on contest. The learned Court below in its earlier order 11th May, 2015 was of the view that the dispute raised by the defendants Counsel raising plea that the disputed share is not partible and as such the question of passing preliminary decree of partition is inadmissible and does not arise. However, the learned Court was of the view that the question of partibility of disputed property will arise only after passing of the preliminary decree and if the parties failed to effect the partition amicably by metes and bounds, when there is a report of the Commissioner that the property is not partible, then the necessary procedure will follow as per law. Accordingly, the learned Court below was of the view that this is not the stage to decide whether suit property is partible or not. The Civil Court was further of the view that by filing a counterclaim for specific performance of contract by the defendant ipso facto prove that the defendant admits plaintiffs share over the suit property. Accordingly, the learned Court below was of the view that this is not the stage to decide whether suit property is partible or not. The Civil Court was further of the view that by filing a counterclaim for specific performance of contract by the defendant ipso facto prove that the defendant admits plaintiffs share over the suit property. That in the absence of any application under Order 12, Rule 6 of the Code of Civil Procedure from the side of the plaintiff for passing preliminary decree on admission, the Court was unable to pass any order as prayed by the plaintiff. On that basis an application was filed by the petitioner under Order 12, Rule 6 of the Code of Civil Procedure for passing a preliminary decree in his favour. A point was taken if there is no preliminary decree of partition then in that case the counter-claim if allowed, it would be difficult to execute the same. However, the learned Court below considered the arguments advanced before it and has come to a conclusion that there is no other co-sharer and admittedly the property in question is a joint property and the defendant by filing a counter-claim wanted specific performance of agreement for the undivided half share of the plaintiff and according to the learned Court below, since counter-claim with a prayer for decree for specific performance of contract in respect of undivided half share of the plaintiff was filed and if the preliminary decree on admission is passed, then the counter-claim filed by the defendant would be effected. Accordingly, without considering the counter-claim of the defendant, preliminary decree cannot be passed. However, the logic given by the learned Court below is unsound and not backed by any law. Moreover, for passing preliminary decree on admission no trial is necessary and the argument advanced by the learned Counsel for the opposite party on that score is also not acceptable. Learned Court below also could not record any tangible reason for disallowing the prayer made by the petitioner. It is pertinent to mention that on previous occasion point of partibility was taken before the learned Court but such plea was rejected. The said order was never questioned. 32. Accordingly, this Court is of the view unless a preliminary decree is passed on the basis of admission made by the defendant/opposite party the question of adjudication of counterclaim would not arise. The said order was never questioned. 32. Accordingly, this Court is of the view unless a preliminary decree is passed on the basis of admission made by the defendant/opposite party the question of adjudication of counterclaim would not arise. The claim of the defendant/opposite party is for enforcement of his agreement by way of specific performance. This Court is of further view that even if a preliminary decree is passed in that event the defendants counter-claim can very well be adjudicated and there would be no difficulty to the learned Court below. However, learned Court below could not state and/or show any prohibition under any law to the effect that after passing of preliminary decree there would be no scope for adjudication of the counter-claim. It would be very relevant to note the provisions under Order 12, Rule 6 of the Code of Civil Procedure which clearly stipulates where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. Learned Court below failed to appreciate the scope and ambit of provisions under Order 12, Rule 6 of the Code of Civil Procedure. Order 12, Rule 6 of the Code of Civil Procedure is reproduced herein below :- "6. Judgment on admission. – (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced." 33. In my considered opinion, order of the learned Court below is not lawful and suffers material irregularity and as such not sustainable. (2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced." 33. In my considered opinion, order of the learned Court below is not lawful and suffers material irregularity and as such not sustainable. In that view of the matter, order passed by the learned Court below is set aside. 34. This revisional application is, thus, allowed. There would be no order as to costs. 35. Learned Court below is directed to pass a preliminary decree on admission and would be at liberty to adjudicate the counter-claim after passing preliminary decree. Considering the facts and circumstances of this case, the learned Court below is directed to dispose of the main suit within five months from the date of communication of this order without granting any unnecessary adjournment to any of the parties on any reason whatsoever. This order is peremptory.