Madras High Court
S.Pitchai vs Ponnammal on 4 August, 2017
Equivalent citations: AIR 2017 MADRAS 281, (2018) 4 RECCIVR 439, (2018) 2 CIVILCOURTC 151, (2017) 8 MAD LJ 274, (2018) 2 CIVLJ 200, (2018) 183 ALLINDCAS 604 (MAD)
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.08.2017
Reserved on : 25.07.2017
Delivered on : 04.08.2017
CORAM
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
C.R.P.(PD).(MD)No.1066 of 2009
and
M.P.(MD)Nos.1 of 2009 and 1 of 2013
S.Pitchai : Petitioner
Vs.
1.Ponnammal
2.Ganesan
3.Boominathan
4.Maragatham
5.Asuvanthaman
6.Kannan : Respondents
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, praying to call for the records relating to the order
dated 08.04.2009 made in I.A.No.696 of 2008 in I.A.No.869 of 2005 in O.S.No.3
of 2005 on the file of District Munsif Court, Aruppukottai and set aside the
same.
!For Petitioner : Mr.A.Arumugam,
For M/s.Ajmal Associates
^For Respondent No.1 : Mr.S.Natarajan
For Respondents 2to6 : No Appearance
:ORDER
INTRODUCTORY:
Whether Interlocutory Application for impleading under Order 1 Rule 10 of the Code of Civil Procedure, at the instance of a third party to the preliminary decree, is maintainable during the final decree proceedings, is the core issue that arises for consideration in this Civil Revision Petition.
BRIEF FACTS:
2. The petitioner was not a party to the civil suit in O.S.No.3 of 2005. The learned District Munsif, Aruppukkottai, passed a preliminary decree for partition at the instance of the first respondent. Thereafter, the first respondent initiated proceedings in I.A.No.869 of 2005 for passing a final decree in terms of the preliminary decree. The Advocate Commissioner appointed by the Trial Court inspected the property for partition by metes and bounds. It was only at that point of time the petitioner came to know that a preliminary decree was passed for partition which includes the property in his possession. The petitioner, therefore, filed an application in I.A.No.696 of 2008 for impleading him as a party to the final decree petition. The application was dismissed by the Trial Court primarily on the ground that final decree proceedings is not the appropriate proceedings to implead the petitioner as a party to decide the claim made by him. The Trial Court opined that it is open to the petitioner to initiate any other proceedings in accordance with law. The application was dismissed. Feeling aggrieved, the unsuccessful petitioner is before this Court.
RIVAL SUBMISSIONS:
3. The learned counsel for the petitioner contended that the Trial Court erred in dismissing the application filed by the petitioner for impleading on the ground that in view of absence of challenge to the preliminary decree, the application for impleading in the final decree is not maintainable. The learned counsel contended that even after impleading as a party to the final decree proceedings, it would be possible for the petitioner to file an application to set aside the preliminary decree or to amend it, in view of the legal position that the passing of a preliminary decree would not amount to the disposal of the civil suit.
4. The learned counsel for the first respondent contended that the remedy of the petitioner is only to set aside the preliminary decree in the manner known to law. According to the learned counsel, the scope of an application under Order 1 Rule 10 is very limited. It is not open to a third party to implead in a final decree petition for the purpose of deciding his rival claim.
ANALYSIS:
5. The first respondent filed a suit for partition impleading the respondents 2 to 6 as defendants. The petitioner was not a party to the civil suit. The petitioner has taken up a contention that only after the Advocate Commissioner visited the property for measurement to divide it by metes and bounds, he came to know of the preliminary decree passed by the Trial Court.
6. The petitioner in his affidavit filed in support of the Interlocutory Application in I.A.No.696 of 2008 contended that item No.1 absolutely belongs to him and as such, the first respondent has no right to claim partition of the said property. The petitioner further contended that he was given patta in respect of the said property and as such, the property is not liable for partition.
7. The first respondent, in her counter-affidavit in I.A.No.696 of 2008, appears to have taken up a different contention with respect to the devolution of property shown as item No.1 and the right claimed by the petitioner.
8. The Trial Court dismissed the application under Order 1 Rule 10 of the Code of Civil Procedure only on the ground of non-challenge made to the preliminary decree. The Trial Court was of the view that the proper remedy is only to set aside the preliminary decree by initiating appropriate proceedings and not by way of an application to implead in the final decree proceedings.
9. The power of the Court for addition of parties emanated from Order 1 Rule 10 of the Code of Civil Procedure. Order 1 Rule 10(2) of the Code of Civil Procedure gives jurisdiction to the Court to implead a necessary party either suo motu or on application, at any stage of the proceedings.
10. The core issue is as to whether "any stage of the proceedings would include final decree proceedings", so as to enable the Court to entertain an application for impleading, notwithstanding the preliminary decree passed earlier, without the association of the aggrieved third party to the proceedings.
11. The civil suit for partition is a proceedings which would attain finality only after passing the final decree. The suit for partition must be deemed to be pending on the file of the Trial Court till a final decree is passed on the basis of the preliminary decree.
12. The Trial Court appears to have formed an opinion that in the absence of an application for impleading at the first instance before passing the preliminary decree or filing a suit to set aside the preliminary decree, application filed for impleading in the final decree petition is not maintainable. There is no legal basis for the said finding. The Court is well within its powers to amend the preliminary decree or pass a second preliminary decree at the instance of the party who got impleaded in the final decree petition. There is no restriction for passing more than one preliminary decree either to declare the shares or the quantum of share to which a party is entitled. This is so because there is a duty cast upon the Court to decide the entire issues raised in a suit for partition. The rival claim regarding right to claim partition, the property to be partitioned and the share to which the parties are entitled, must be decided once for all.
There should be a finality to the final decree passed by the Court. Therefore, all the disputes must be adjudicated well before passing the final decree. The Court is, therefore, at liberty to entertain application from a newly impleaded party to the final decree petition for amendment of the preliminary decree, notwithstanding the fact that he was impleaded only in the final decree petition.
THE LAW:
13. The Hon'ble Supreme Court in Phoolchand v. Gopal Lal [AIR 1967 SC 1470] indicated that there is no prohibition for passing more than one preliminary decree for declaring the correct shares to which parties are entitled. The Supreme Court said:
"7. We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties of the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason as why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so, and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. In any case if two views are possible -- and obviously this is so because the High Courts have differed on the question -- we would prefer the view taken by the High Courts which held that a second preliminary decree can be passed particularly in partition suits where parties have died after the preliminary decree and shares have to be adjusted. We see no reason why in such a case if there is dispute, it should not be decided by the Court which passed the preliminary decree, for it must not be forgotten that the suit is not over till the final decree is passed and the Court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties........................"
14. In view of the legal position that a suit for partition is pending till a final decree is passed ultimately, I am not in a position to support the view taken by the learned District Munsif. I am, therefore, of the view that the impugned order is liable to be set aside.
15. The order dated 08 April, 2009 is set aside. The application in I.A.No.696 of 2008 is allowed.
16. In the upshot, I allow the Civil Revision Petition. No costs. Consequently, the connected miscellaneous petitions are closed.
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