Petitioner-appealed against the lower court's order allowing a co-defendant to file a separate written statement. The High Court held that inter-defendant disputes do not affect the plaintiff's claim and the order stood confirmed under CPC rules.
Instant writ petition stands rejected to the extent of confirming the impugned order.
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IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10487 of 2013
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====================================================== Appearance : For the Petitioner/s : Mr. Manish Kumar No.2, Advocate For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER
occasion, became hostile to each other and on account thereof defendant no.2 has deflected the camp of petitioner/defendant
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no.1, contradicted the statement having been incorporated in the WS whereupon asked for an opportunity from the Court by filing a petition on 18.07.2012 for filing separate WS which the learned lower court by the order impugned dated 16.03.2013 with regard to Partition Suit No. 54/11/177/11 pending before Sub-Judge, 3rd Gaya allowed, is the subject matter of challenge under the present petition.
Patna High Court CWJC No.10487 of 2013 (2) dt.06-09-2016
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with the order impugned. Admittedly, petitioner is one of the defendants. The nature of the suit, as it speaks, happens to be Partition Suit whereunder identity of each of the co-sharer along with the extent of share is to be perceived and during course thereof, the Court is found within its domain to identify whether the plaintiff happens to be one of the siblings coming under category of co-sharer/tenant in common (as the case relates to Mohammedan Law), therefore, when the suit has been brought up at the end of the plaintiff, he had impleaded the parties who have been identified at his end as tenant in common and further, on account of presence of aforesaid tenant in common, he had claimed his right to the extent of his share whatever been shown under relief. Mere assertion of defendant that particular individual is not brother or sister is not going to axe upon the interest of the plaintiff rather it happens to be the plaintiff, dominating his plea and so, it is the plaintiff who has to say on this score. The deflection of the defendants from each other may be harmful to each of the defendant but that will not go adverse to the interest of the plaintiff whose interest the court is bound to adjudicate. The plea of defendant unless counter-claimed goes out of consideration during such exercise. Then in that event, whether the deflection of
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defendant will give a cause to the co-defendant to raise question mark against his conduct is found beyond consideration as for that, the CPC is silent and rightly been silent because of the fact that even having turmoil amongst the interests of the defendants, will not affect upon prospect of suit whereunder plead of plaintiff found adjudicatable.
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interference, considering the status of the petitioner to be that of one of the defendants, whereupon, the instant petition stands rejected.
(Aditya Kumar Trivedi, J)
perwez
U
2 issues framed by the court
Whether a defendant in a partition suit is entitled to challenge the lower court's order allowing a co-defendant to file a separate written statement.
Whether the inter-se dispute among defendants affects the prospective adjudication of the plaintiff's share.
Gholam Rasool Khan
Bibi Zainab Khatoon
Imaman Khan
Hajra Khatoon
Saleem Khan
Zahid Khan
Aditya Kumar Trivedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
