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2023 DIGILAW 2077 (RAJ)

Parasmal Surana v. Prakashmal Surana

2023-11-06

ARUN MONGA

body2023
ORDER : Mr. Arun Monga, J. - Petition herein is directed against an order dated 05.08.2017 (Annexure-5) passed by learned Additional District and Sessions Judge No.3, Jodhpur Metropolitan, Jodhpur, whereby an application filed by the plaintiff-respondent No.1 for taking on record his rejoinder was allowed and another order dated 26.04.2018 (Annexure-7) whereby a subsequent application for correction of the aforesaid order filed by the petitioner-defendant was dismissed by the same Court. 2. Succinct facts first, as pleaded in the instant petition. 2.1. Respondent No.1 - Prakashmal Surana has filed a suit for partition and permanent injunction in relation to a residential house bearing Plot No.202-A situated at 1st C-Road, Sardarpura, Jodhpur, stating that the said property was purchased by his father, Shri. Ummedmal Surana. On the said property, a house was constructed by him. The Petitioner/defendant asserts that there was no partition made qua the property in question between the legal heirs of said Late Shri. Ummedmal Surana. In his written statement, he has denied the averments of the plaint. 2.2. Thereafter, the plaintiff filed an application under Order 8, Rule 9 CPC for filing rejoinder for rebuttal of defendants' contentions in written statement. 2.3 The petitioner-defendant No.2 filed reply to above said application on 28.08.2015 which was received by the plaintiff. 2.4 After hearing both the parties on the application, the learned trial Court allowed the aforesaid application vide impugned order dated 05.08.2017, inter alia observing that by taking the rejoinder of respondent No.1 (plaintiff) on record, the factual position will come to the knowledge of the court. 2.5. Aggrieved, the petitioner preferred on application for correction of the order 05.08.2017, which was also rejected by the learned trial Court vide its order dated 26.04.2018 (Annexure-7) which too is impugned herein. The court below dismissed the subsequent application stating that there is no illegality in the aforesaid order as the same has been passed by the court after hearing both the learned counsel for the parties and there is no reason to interfere with the same. 3. Learned counsel for petitioner argues that respondent no.1 (plaintiff) has suppressed the material facts in the plaint, which has been filed in collusion with other defendants. He has not approached the court with clean hands. The suit for partition has been filed based on forged and fabricated grounds. 3. Learned counsel for petitioner argues that respondent no.1 (plaintiff) has suppressed the material facts in the plaint, which has been filed in collusion with other defendants. He has not approached the court with clean hands. The suit for partition has been filed based on forged and fabricated grounds. According to petitioner, late Shri. Ummedmal Surana had already partitioned the property in question during his lifetime and after the partition, his sons are all residing separately with no joint family in existence and any observation/finding to the contrary by the court below is perverse and illegal. 4. On the other hand, learned counsel for respondents strenuously opposes the instant petition. He supports the impugned orders and would argue that same are premised on cogent reasons recorded by learned trial Court. 5. The court below rightly observed in the impugned order dated 05.08.2017 that petitioner-defendant No.2 in his reply has wrongly mentioned the facts i.e. late Shri. Ummedmal Surana was not in the Hindu Undivided Family, partition of two other properties along with the disputed property, oral partition of the property by late Shri. Ummedmal Surana during his lifetime and cancellation of Will executed in favour of Lad Kanwar by late Shri. Ummedmal Surana and there was no reply filed by the defendant. Under these circumstances, the trial court came to the conclusion that if the reply of the plaintiff is taken on record that will bring the complete factual position and help in just and proper decision of the case. 6. After hearing counsel for the parties, I am in agreement with the view taken by the trial court. The order passed by the trial court does not suffer from any infirmity or illegality, warranting interference by this Court. 7. In any case, no prejudice would be caused to the petitioner herein by the orders passed by the court below. Both parties have to stand on their own legs and are free to adduce their respective evidence qua the rival claims viz. whether or not partition of the property took place during the lifetime of the Late Shri. Ummedmal Surana, which is the pivotal issue to be decided by the court below. 8. Accordingly, the present writ petition, being devoid of merit, is hereby dismissed.