Madras High Court
S.Rajkumar vs J.Sangeetha on 30 October, 2019
Author: R. Suresh Kumar
Bench: R. Suresh Kumar
C.R.P.No.624 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.10.2019
CORAM
THE HON'BLE MR.JUSTICE R. SURESH KUMAR
C.R.P.No.624 of 2019 and
C.M.P.Nos.4178 and 22517 of 2019
S.Rajkumar ... Petitioner
-Vs-
1.J.Sangeetha
2.K.Amarjothi ... Respondents
Prayer : Civil Revision Petition under Article 227 of the Constitution of India against
the docket adjudication order dated 07.01.2019 in O.S.No.106 of 2018 on the file of
the III Additional District and Sessions Court, Dharapuram.
For Petitioner : Mr.P.P.Saravana Sowmiyan
For Respondents : Mr.P.Mubarak Basha
ORDER
This revision has been filed against the docket adjudication order dated 07.01.2019 in O.S.No.106 of 2018 on the file of the III Additional District and Sessions Court, Dharapuram.
2. Before the trial Court, the first respondent herein filed a suit for partition against the second respondent as well as revision petitioner. In the plaint, there are two schedule of properties. It is the claim of the plaintiff as well as the first http://www.judis.nic.in Page 1 of 6 C.R.P.No.624 of 2019 defendant that they have equal share in respect of the first schedule of the plaint property. Insofar as the second schedule property is concerned, the second respondent herein, who is the second defendant in the suit, who is the aunt of plaintiff as well as the first defendant, is entitled for half share of Schedule II property alone and she does not have any connection whatsoever with Schedule I property. The said position ie., insofar as the claim of the second respondent / second defendant for half share in Schedule II of the suit property is concerned, it has been accepted by other two parties ie., plaintiff and the first defendant and based on this factual matrix, the trial Court, through the impugned order dated 07.01.2019, allotted half share in the Schedule II of the suit property to and in favour of the second defendant, subject to payment of required court fee within 15 days and on payment of such court fee, the second defendant was exonerated from the suit.
3. In this context, it is the claim of the first defendant / revision petitioner that he does not have any grievance insofar as the allotting of half share in Schedule II of the property to and in favour of the second defendant is concerned. Like wise, the plaintiff also does not have any grievance and their grievance, especially the grievance of the first defendant / revision petitioner is that, even though half share is allotted in Schedule II of the suit property by the order dated 07.01.2019, the presence of the second defendant in the suit till the final decree is passed is very much required, as between the plaintiff and the first defendant, a http://www.judis.nic.in Page 2 of 6 C.R.P.No.624 of 2019 preliminary decree has to passed, where the allotment of half share in the Schedule II of the suit property also has to be taken care of and accordingly, after the Advocate Commissioner files any report in future to divide the property in metes and bounds as per the preliminary decree, for dividing the half share in the Schedule II to and in favour of the second defendant, certainly the second defendant has got some say and therefore, in order to elucidate the views of the second defendant and to have complete adjudication till the final decree is passed, the presence of the second defendant is very much required. Therefore, the order exonerating the second defendant from the suit could not have been passed and the second defendant could not have been exonerated at this stage.
4. I have heard the submissions of both the learned counsel for the petitioner / first defendant as well as the learned counsel for the first respondent / plaintiff and the second respondent / second defendant.
5. Insofar as the allotment of half share to the second defendant in Schedule II of the suit property through the impugned order is concerned, none of the parties has got any grievance. However, insofar as the exoneration of the second defendant from the suit is concerned, the aforesaid difficulty has been expressed and this Court, after hearing the learned counsel on either side, feels that, there is some force in the said contention.
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6. Ultimately, if preliminary decree is passed and subsequently final decree application is filed, where Advocate Commissioner is appointed, the half share to be allotted to the second defendant has to be identified and earmarked in the Schedule II of the suit property and for the said purpose, till such time the presence of the second defendant is very much required in the suit. Therefore, in that view of the matter, the impugned order dated 07.01.2019 is required to be modified.
7. In result, this Civil Revision Petition is disposed of, with the following modified order.
(i) That the order of the trial Court dated 07.01.2019, which is impugned herein, allotting half share in the Schedule II of the suit property to and in favour of the second respondent is sustainable and needs no revision.
(ii) However, the order exonerating the second defendant from the suit is hereby set aside and accordingly the second defendant shall continue to be a party in the suit till the final decree is passed.
(iii) Taking into consideration the facts and circumstances of the case, the Court below is hereby directed to dispose of the suit till http://www.judis.nic.in Page 4 of 6 C.R.P.No.624 of 2019 preliminary decree, within a period of three months from the date of receipt of a copy of this order.
8. With the above modification, the Civil Revision Petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
30-10-2019 Index : Yes/No Internet : Yes/No KST To The III Additional District and Sessions Judge, Dharapuram http://www.judis.nic.in Page 5 of 6 C.R.P.No.624 of 2019 R. SURESH KUMAR, J.
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