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2020 DIGILAW 812 (JHR)

Bhagwan Prasad Jaiswal v. Arun Kumar

2020-08-28

RAJESH SHANKAR

body2020
ORDER : The present C.M.P. has been filed for quashing and setting aside the order dated 04.10.2019 passed by the Civil Judge (Senior Division)-III, Giridih in Original (Partition) Suit No. 167 of 1983, whereby the application of the petitioners/defendants dated 16.02.2019 filed under Section 2 and 3 of the Partition Act, 1893 has been rejected. 2. The factual background of the case as stated in the C.M.P. is that the original plaintiff namely, Ram Bilash Bhagat filed Partition Suit No. 167 of 1983 against the original defendant namely, Ram Naresh Bhagat and others including the father of the defendants/petitioners and proforma respondent nos. 11 to 14 for partition of half share of original plaintiff in the suit property by appointing Survey Knowing Pleader Commissioner. The said suit was allowed vide judgment dated 12.03.1986 and a preliminary decree was prepared for partition of half share in favour of original plaintiff in the suit property given in the schedule of the plaint of partition. The court below appointed Survey Knowing Pleader Commissioner to carve out the share of the respective parties and submit report for preparation of final decree. The original defendants preferred appeal being Title Appeal No. 38 of 1986/13 of 1987, however, the same was also dismissed by the Additional District Judge, Giridih vide order dated 03.08.1988. The Second Appeal preferred by the original defendant no. 1/father of the petitioners vide S.A. No. 1 of 1989(R) was also dismissed vide order dated 22.02.1989. Thereafter, the original defendant no. 1/father of the petitioners filed S.L.P(C) No. 10199 of 1989 before the Hon’ble Supreme Court, however, the said appeal was also dismissed. In the meantime, the Pleader Commissioner submitted its report dated 19.04.1993 in the court below whereafter objections upon the said report were invited from the parties. The original defendant no. 1/father of the petitioners filed objection to the report of the pleader commissioner on 25.08.1993. In the meantime, the defendant no. 1/father of the petitioners died and thereafter the present petitioners were impleaded as party defendants and they also raised objection to the report of the pleader commissioner. However, the court below rejected all the objections vide order dated 11.03.1998. 1/father of the petitioners filed objection to the report of the pleader commissioner on 25.08.1993. In the meantime, the defendant no. 1/father of the petitioners died and thereafter the present petitioners were impleaded as party defendants and they also raised objection to the report of the pleader commissioner. However, the court below rejected all the objections vide order dated 11.03.1998. On 16.02.2019, the defendants/petitioners filed an application under Section 2 and 3 of the Partition Act, 1893 seeking permission of the court to buy the allotted share of the original plaintiff on the valuation as shown in the pleader commissioner’s report or as may be fixed by the court to save the property from fragmentation and also to save the closure of business which is the only source of income of their family. However, the said application of the defendants/petitioners was rejected vide impugned order dated 04.10.2019. Hence, the present C.M.P. 3. The learned counsel for the defendants/petitioners submits that the suit premises is a building where the petitioners/defendants run their business which is the only source of their livelihood and reside in the back portion of the same and as such, if the property is partitioned, the petitioners would suffer irreparable loss and injury. The successors of original plaintiff/respondent nos. 1 to 6 have their separate place of business over Khata No. 29, Plot No. 634 in the same locality just opposite the road at the distance of about half kilometer. In this circumstance, the court below ought to have permitted the petitioners to buy the allotted share of the original plaintiff on the valuation as shown in the pleader commissioner’s report or as fixed by the court. The learned court below has misinterpreted the scope of Section 2 and 3 of Act, 1893 as well as the provisions of res-judicata within the meaning of Section 11 of CPC. Since the petitioners in order to avoid all conflict and further problems requested the learned court below to fix the value of the allotted half share of the original plaintiff instead of effecting partition of the said share in dwelling house and expressed willingness to pay/deposit the said value in order to avoid all future complications between the parties, the same deserved to be allowed for the ends of justice. The suit is neither finally decided nor completely terminated, hence Section 11 CPC has got no application in the present case. 4. Heard the learned counsel for the petitioners and perused the materials available on record. By way of present petition, the petitioners have challenged the impugned order dated 04.10.2019 passed by the Civil Judge (Sr. Div.)-III, Giridih, whereby the said court has declined to accept the prayer of the petitioners to purchase the allotted share of the original plaintiff in question on the rate fixed by the pleader commissioner or as may be fixed by the court claiming that they are doing business as well as residing in the part of the said building premises. 5. Before coming to the merit of the contention raised by the learned counsel for the petitioners, it would be appropriate to go through the judgment rendered by the Hon’ble Supreme Court in the case of “ Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil” reported in (2010) 8 SCC 329 , wherein after having gone through several earlier judicial pronouncements, certain principles have been laid down for exercising the power under Article 227 of the Constitution of India. Para 49 of the said judgment reads as under: 49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. (c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh [ AIR 1954 SC 215 ] and the principles in Waryam Singh [ AIR 1954 SC 215 ] have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh [ AIR 1954 SC 215 ], followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, “within the bounds of their authority”. (f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. In other words the jurisdiction has to be very sparingly exercised. (i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India [ (1997) 3 SCC 261 : 1997 SCC (L&S) 577] and therefore abridgment by a constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. 6. It may thus be construed that the power under Article 227 of the Constitution of India is discretionary and is to be exercised on equitable principle. The power under Article 227 has to be exercised by the High Court sparingly and not as a court of appeal over the orders of the court or tribunal subordinate to it. When a patent perversity is found in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted, the power under Article 227 may be exercised. However, in exercise of its power of superintendence, High Court should not interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it is possible. 7. On perusal of the content of the writ petition, it appears that the judgment in Partition Suit No. 167 of 1983 was pronounced on 12.03.1986 and thereafter a preliminary decree was prepared in favour of the original plaintiff namely, Ram Bilash Bhagat. After preparation of the preliminary decree, a Survey Knowing Pleader Commissioner was appointed for “Takhtabandi” and allocating their shares in the suit property. The pleader commissioner submitted his report dated 19.04.1993 whereafter objections were invited from the parties. The petitioners also raised certain objections on the report of the pleader commissioner, however, the said objections were rejected and the report was accepted vide order dated 11.03.1998. The petitioners after about 21 years filed a petition under Section 2 and 3 of the Act, 1893. The said application of the petitioners has been rejected by the learned court below vide impugned order dated 04.10.2019 holding inter alia that the said prayer ought to have been raised by the petitioners when the court had invited objections from the parties on the report of the pleader commissioner. The said application of the petitioners has been rejected by the learned court below vide impugned order dated 04.10.2019 holding inter alia that the said prayer ought to have been raised by the petitioners when the court had invited objections from the parties on the report of the pleader commissioner. Since the petitioners have filed the application under Section 2 and 3 of the Act, 1893 after acceptance of the final report of the pleader commissioner, the same cannot be said to be bonafide. I do not find any infirmity in the order of the learned court below as while passing the impugned order, it has taken into consideration all the relevant facts and after having elaborately dealt with the contentions raised by the parties, has dismissed the said application of the petitioners. 8. Otherwise also, in the case of “R. Ramamurthi Iyer Vs. Raja Vs. Rajeswara Rao” reported in (1972) 2 SCC 721 , the Hon’ble Supreme Court has held as under: 8. The Partition Act was enacted to amend the law relating to partition. Sections 2 and 3 are as follows: “2. Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds. 3. 3. (1) If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the Court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price so ascertained, and may give all necessary and proper directions in that behalf. (2) If two or more shareholders, severally apply for leave to buy as provided in sub-section (1) the Court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the Court. (3) If no such shareholder is willing to buy such share or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incident to the application or applications.” The scheme of Sections 2 and 3 apparently is that if the nature of the property is such or the number of shareholders is so many or if there is any other special circumstance and a division of the property cannot reasonably or conveniently be made the court can in its discretion, on the request of any of the shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and distribute the proceeds among the shareholders. Now where a court has been requested under Section 2 to direct a sale any other shareholder can apply for leave to buy at a valuation the share or shares of the party or parties asking for sale. In such a situation it has been made obligatory that the court shall order a valuation of the share or shares and offer to sell the same to the shareholder who has applied for leave to buy the share at a price ascertained by the court. In such a situation it has been made obligatory that the court shall order a valuation of the share or shares and offer to sell the same to the shareholder who has applied for leave to buy the share at a price ascertained by the court. In other words if a plaintiff in a suit for partition has invoked the power of the court to order sale instead of division in a partition suit under Section 2 and the other shareholder undertakes to buy at a valuation the share of the party asking for sale the court has no option or choice or discretion left to it and it is bound to order a valuation of the share in question and offer to sell the same to the shareholder undertaking or applying to buy it at a valuation. The purpose underlying the section undoubtedly appears to be to prevent the property falling into the hands of third parties if that can be done in a reasonable manner. It would appear from the Objects and Reasons for the enactment of the Partition Act that as the law stood the court was bound to give a share to each of the parties and could not direct a sale or division of the proceeds. There could be instances where there were insuperable practical difficulties in the way of making an equal division and the court was either powerless to give effect to its decree or was driven to all kinds of shifts and expedients in order to do so. The court was, therefore, given a discretionary authority to direct a sale where a partition could not reasonably be made and the sale would, in the opinion of the court, be more beneficial to the parties. But having regard to the strong attachment of the people in this country to their landed possessions the consent of the parties interested at least to the extent of a moiety in the property was made a condition precedent to the exercise by the Court of the new power. At the same time in order to prevent any oppressive exercise of this privilege those shareholders who did not desire a sale were given a right to buy the others out at a valuation to be determined by the court. 9. Thus, the power under Section 2 of the Act, 1893 is a discretionary one. At the same time in order to prevent any oppressive exercise of this privilege those shareholders who did not desire a sale were given a right to buy the others out at a valuation to be determined by the court. 9. Thus, the power under Section 2 of the Act, 1893 is a discretionary one. When the court, having taken into consideration of the nature of the property, number of shareholders or for any other special circumstance, thinks that the property cannot be conveniently or reasonably divided, it may on the request of any of the shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and distribute the proceeds among the shareholders. Only when the request is made for sale of the property in question under Section 2 is obligatory upon the court under Section 3 of the Act, 1893 to order for valuation of the share(s) and offer to sell the same to the shareholders who has applied for the leave to buy the share at a price ascertained by the court. The purpose for introduction of Section 2 and 3 is to prevent the property falling into the hands of third party if that can be done in a reasonable manner. 10. In the present case, there is no finding of the learned court below that the property cannot be conveniently divided, rather the pleader commissioner has already demarcated the share of the original plaintiff and original defendants upon the suit property and his report has finally been approved vide order dated 11.03.1998 after rejecting the objections raised by the petitioners. I am of the considered view that since there was no finding under Section 2 of the Act, 1893, it was not obligatory for the learned court below to order for sale of the suit property to the petitioners. Moreover, it is not the stand of the petitioners that the property is going in the hands of the third party and it is necessary to allow the petitioner’s application to prevent such transfer. 11. In view of the aforesaid discussion, I find no merit in the present C.M.P. and the same is accordingly dismissed.