Hon'ble Arvind Kumar Tripathi (II),J.
All these matters were taken together and are being disposed of by a common judgment as was agreed by the learned counsel for the parties.
The following facts are noted from First Appeal No. 113 of 2006.
The aforesaid appeal has been preferred by defendant no. 1 of Original Suit No. 963 of 2005, Satish Chandra Garg v. Rajendra Sharma and others. The suit has been instituted for partition by Satish Chandra Garg against Rajendra Sharma, Punit Garg and Ankur Maheshwari. The dispute relates to a dwelling house. The plaintiff claimed 5/18th share. Besides the decree for partition, the relief for permanent injunction restraining defendant no. 1 to interfere in the possession of plaintiff till actual partition has also been prayed for. The said suit is still pending against defendants no. 2 and 3.
It appears that defendant no. 1 who is appellant here, could not file written statement within thirty days from the date of service of notice. As a matter of fact, he had entered into caveat of the suit and the time was granted to file written statement on 25th November, 2005 and 22nd December, 2005. The written statement was filed within 90 days but that was not accepted by the trial court as it was filed beyond 30 days. The trial court by the order under appeal has proceeded under Order VIII Rule 10 of the C.P.C. and decreed the suit against the present appellant/defendant no. 1.
Challenging the aforesaid judgment and decree, the present appeal has been filed.
Heard Shri Rishi Chadha, learned counsel for the appellant and Shri Divakar Rai Sharma, learned counsel for the contesting respondents.
At the very outset, Shri Divakar Rai Sharma, learned counsel for the respondents states that in an earlier pending litigation, the appellant herein has claimed 1/5th share in the property in dispute and the contesting respondents have no objection to the said claim. He submits that the appellant cannot get more than what he has claimed and in this view of the matter, the final curtain should be drawn to the litigation.
Shri Rishi Chadha, learned counsel for the appellant admits that the appellant has claimed 1/5th share in the property in dispute. However, he maintains that the other co-sharers have transferred their shares to strangers and he has a right of preemption to purchase the share of other co-sharers in preference to an outsider.
Considered the respective submissions of the learned counsel for the parties and perused the record.
After hearing the learned counsel for the parties at some length, we are of the opinion that on the facts of the present case, the court below was not justified in closing the defence of the appellant specially when the written statement was filed within 90 days and also the suit is proceeding on merits against defendants no. 2 and 3. In such facts situation, the trial court should have accepted the written statement on certain terms as to costs etc. We were informed that the suit is still at its infancy stage and issues have yet to be framed. Having regard to the facts and circumstances of the case, we are of the opinion that the interest of justice will be served by permitting the defendant no. 1 to place his written statement/counter claim on record subject to payment of cost of Rs.15,000/-. Defendant no. 1 will deposit the said amount by way of bank draft/banker's cheque drawn in favour of Satish Chandra Garg within one month, before the court below. The said bank draft/banker's cheque shall be handed over to the plaintiff without any delay.
It is made clear that in case of default, the accommodation granted by this court to the defendant no. 1 shall stand discharged and the defendant no. 1 will have no right to file written statement on record.
We may place on record that the learned counsel for the respondents disputes the right of defendant no. 1 to file counter claim particularly with regard to plea of preemption. The said plea shall be considered and decided, if so raised by the trial court while deciding the suit.
In view of the above discussion, the appeal succeeds and is allowed accordingly.
The judgment and decree dated 3rd February, 2006 so far as it relates to defendant no. 1 is concerned is, hereby, set aside and the matter is restored back to the trial court as indicated above.
Now we take up the following civil revisions :-
1. Case :- CIVIL REVISION No. - 280 of 2010
2. Case :- CIVIL REVISION DEFECTIVE No. - 7 of 2010
3. Case :- CIVIL REVISION No. - 494 of 2009 These revisions have been preferred under Section 115 of C.P.C. and are directed against various orders passed by the trial court in the course of proceedings in Original Suit No. 848 of 2001. The said suit has been instituted by Rajendra Sharma against Narendra Sharma & others for injunction restraining the defendants therein not to transfer or alienate in specific portion of the property in dispute. The suit has been instituted on the pleas inter alia that the parties are co-sharers in the property in dispute and other co-sharers are intending to transfer their shares with specific portion of the property. Initially, the said suit was filed against the brothers and sister of the plaintiff. It appears that during pendency of the suit some of co-sharers have transferred certain portion of the property in dispute. The purchasers who have been impleaed as defendants have filed the following applications:
1.That the suit is not maintainable and the plaint is liable to be rejected under Order 7 Rule 11 of the C.P.C. as relief for partition has not been claimed.
2.The amendment sought for by the plaintiff is belated one and time barred with regard to mother's Will.
3.The application was filed that nothing remains to be decided in the suit as the purchasers admit the share of the plaintiff to the extent of 1/5th in the property in dispute.
All these applications have been rejected by different orders which led the filing of the aforesaid three revisions.
Heard Shri Divakar Rai Sharma, learned counsel for the applicant in support of the revisions and Shri Rishi Chadha, learned counsel in opposition.
After hearing the learned counsel for the parties at some length, we find that in respect of same property two suits being Suit No. 963 of 2005 and Suit No. 848 of 2001 for different reliefs are pending in two courts. There, major and substantial issues are common. Most of the parties are also common. We are of the opinion that the suit no. 848 of 2001 be transferred and consolidated with subsequent suit no. 963 of 2005. The property in dispute, in both suits, is the same and almost identical pleas have been set up by the respective parties. Basically the evidence in both the suits will be common.
In view of the fact that we have allowed connected First Appeal No. 113 of 2006 and restored the matter back to the trial court and directed the trial court to decide the suit on merits, we are proposing not to interfere in these revisions which are directed against various orders passed in intermediate stages of the proceedings in the suit no. 848 of 2001.
By way of clarification it is provided that these orders will not come in the way of either parties at the hearing of the suits.
It shall be open to the trial court to decide all the issues raised by the parties uninfluenced by any of the observations made by this Court or of trial court in any of the orders subject matter of the aforesaid revisions.
Since the matter relates to the partition of the property and the parties are co-sharers, the trial court will do good by hearing and deciding the suits expeditiously, preferably within a period of one year from the date of production of certified copy of this order.
With the aforesaid observations, these revisions are disposed of. No order as to costs.
(A.K. Tripathi (II),J) (Prakash Krishna,J) Order Date :- 31.7.2012 MK/