The Patna High Court dismissed this writ petition challenging an order refusing to pass judgment in a partition suit. The Court disagreed with the petitioners regarding the application of Order XII Rule 6 CPC.
Petitioner's writ application dismissed; impugned order of the court below is upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8533 of 2014
======================================================
... ... Petitioner/s Versus
Patna High Court CWJC No.8533 of 2014 dt.11-12-2018 2/4
Saraiyaganj, Town Muzaffarpur, P.S. Muzaffarpur, Town Munsifi District - Muzaffarpur at present C/o Banshi Sah Mithai Ki dukan at Mohalla - Mahendru, near Engineering College, Patna , P.O. and P.S. Mahendru, District - Patna.
| =============== | ... ... Respondent/s ======================================= |
|---|---|
| Appearance : |
|
| For the Petitioner/s |
: Mr. Keshav Srivastava, Sr. Adv. Mr. Bhubneshwar Prasad, Adv. |
| For the Respondent/s =============== |
: Mr. Dharmendra Kumar Sinha, Adv. ======================================= |
CORAM: HONOURABLE MR. JUSTICE SANJAY KUMAR ORAL JUDGMENT
Date : 11-12-2018
Petitioners before this Court are defendants no. 1 and 8 to 10 of Partition Suit No. 230 of 2000 pending in the court of Sub-Judge-II, Muzaffarpur. They have filed this writ application for quashing the order dated 05.02.2014 whereby and whereunder the learned court below refused to pass judgment.
Heard learned counsels for the petitioners and the respondents.
The respondent nos. 1 to 5 are heirs of original plaintiff. The husband of respondent no. 1 had filed the aforesaid suit for partition of land and house mentioned in schedule-I of the plaint. The defendant nos. 1 to 3 and 5 to 12 filed joint written statement. At paragraph 7 of the written statement, they have asserted that the suit is bad for partial partition because the plaintiff has left out to partition the ancestral joint family shops. The defendants further asserted that they have no objection if partition is allowed with respect to suit property as well as the shops and business existing
Patna High Court CWJC No.8533 of 2014 dt.11-12-2018 3/4
in the family. The defendants further filed counter claim under Order VIII Rule 6-A of C.P.C. with respect to the property mentioned in schedule-I of the written statement. The petitioners subsequently filed a petition to withdraw the counter claim and prayed to decree the suit to the extent of share as claimed by the plaintiff in the suit. The plaintiff filed objection and the court below rejected the petition observing that the alleged admission is not clear and further that the plaintiffs have sought amendment to add some other ancestral property.
The learned counsel for the respondents submitted that the provision of Order XII Rule 6 is discretionary and not mandatory as held by the Apex Court reported in 2015 (4) PLJR page 42 (S.C.) S.M. Asif vs. Virender Kumar Bajaj wherein the Hon’ble Apex Court at paragraph 9 has held as follows:-
“The words in Order XII Rule 6 CPC “may” and “make such order...” show that the power under Order XII Rule 6 CPC is discretionary and cannot be claimed as a matter of right. Judgment on admission is not a matter of right and rather is a matter of discretion of the Court. Where the defendants have raised objections which go to the root of the case, it would not be appropriate to exercise the discretion under Order XII Rule 6 CPC. The said rule is an enabling provision which confers discretion on the Court in delivering a quick judgment on admission and to the extent of the
Patna High Court CWJC No.8533 of 2014 dt.11-12-2018 4/4
claim admitted by one of the parties of his opponent's claim….”
In the case in hand, I find that some of the defendants
have prayed to decree the suit. These petitioners had earlier opposed the claim of the plaintiff on the ground of partial partition. The other defendants i.e. defendant nos. 4, 5, 7 and 14 have not supported the case of the petitioners. The plaintiff has filed an amendment petition to add some of his ancestral land which has been sold by some of the co-sharer. The said petition is pending for disposal. Besides that the plaintiff has filed a Title Suit No. 206 of 2000 against the defendants and some others. The learned court below in view of contest of the plaintiff has rejected the prayer of petitioners.
In view of settled principle of law as referred to above I do not find any merit in this writ application and is accordingly dismissed.
(Sanjay Kumar, J)
mkchy/-
| AFR/NAFR | NAFR |
|---|---|
| CAV DATE | N/A |
| Uploading Date | 22.12.2018 |
| Transmission Date | N/A |
2 issues framed by the court
Whether the writ application for quashing the impugned order refusing to pass judgment in the partition suit has any merit.
Whether the power to pass judgment on admission under Order XII Rule 6 CPC is mandatory or discretionary.
Colour shows how this judgement treated each authority
S.M. Asif vs. Virender Kumar BajajRelied on¶37
2015 (4) PLJR page 42 (S.C.) S.M. Asif vs. Virender Kumar Bajaj
Dinesh Prasad Gupta
Utpal Kumar Gupta
Rakesh Kumar Gupta
Urmila Devi
Sunaina Devi
Sanjay Kumar
As recorded by the court registry
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