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Showing posts with label partition. Show all posts
Showing posts with label partition. Show all posts
Sunday, December 9, 2012

Code of Civil Procedure, 1908: ss.2(20) and 54, O. 20 r.18, O. 26 r.13 - Partition suit - Preliminary decree passed - Application for final decree - Resisted on the ground of limitation - DECREE - Preliminary decree and final decree - Concept of, in the context of partition suits and mortgage suits - SUIT: Suit for partition - Partition - Concept of - LEGISLATION: Suit - Filing of suit and securing relief to litigant - Proceedings in between - Need for legislation to avoid multiplicity of proceedings - HELD: Where an application does not invoke the jurisdiction of court to grant any fresh relief based on a new cause of action, but merely reminds or requests the court to do its duty by completing the remaining part of the pending suit, there is no question of any limitation - Such an application is not one to which Limitation Act would apply - As declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit - Suit continues to be pending until partition, that is, division by metes and bounds, takes place by passing a final decree - An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree is neither an application for execution (falling under Article 136 of Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of Limitation Act) - Code does not contemplate filing of an application for final decree - Therefore, when a preliminary decree is passed in a partition suit, the proceedings should be continued by fixing dates for further proceedings till a final decree is passed -It is the duty and function of the court which in the normal course has to be performed by the court itself as a continuation of the preliminary decree - Performance of such function does not require a reminder or nudge from the litigant - The mindset should be to expedite the process of dispute resolution - The application filed by plaintiff for drawing up of a final decree was rightly held to be not subject to any period of limitation - Court concerned would expedite the final decree proceedings - Limitation. Lalta Prasad v. Brahma Din AIR 1929 Oudh 456; Ramabai Govind v. Anant Daji AIR 1945 Bom. 338; Abdul Kareem Sab v. Gowlivada S. Silar Saheb AIR 1957 AP 40; A. Manjundappa v. Sonnappa & Ors. AIR 1965 Kar. 73; Sudarsan Panda & Ors. v. Laxmidhar Panda & Ors. AIR 1983 Orissa 121; Laxmi v. A.Sankappa Alwa AIR 1989 Ker. 289; Phoolchand vs. Gopal Lal AIR 1967 SC 1470; Hasham Abbas Sayyad v. Usman Abbas Sayyad & Ors. 2007 (2) SCC 355; and Bikoba Deora Gaikwad v. Hirabai Marutirao Ghorgare 2008 (8) SCC 198, relied on HELD: There is a fundamental difference between mortgage suits and partition suits - In a preliminary decree in a mortgage suit (whether a decree for foreclosure under r.2 or a decree for sale under r.4 of O 34 CPC), the amount due is determined and declared and the time within which the amount has to be paid is also fixed and the consequence of non- payment within the time stipulated is also specified - A preliminary decree in a mortgage suit decides all the issues and what is left out is only the action to be taken in the event of non-payment of the amount - When the amount is not paid, plaintiff gets a right to seek a final decree for foreclosure or for sale - On the other hand, in a partition suit the preliminary decree only decides a part of the suit and, therefore, an application for passing a final decree is only an application in a pending suit, seeking further progress - In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court - In fact several applications for final decree are permissible in a partition suit - The application for final decree as and when made is considered to be an application in a pending suit for granting the relief of division by metes and bounds - Therefore, the concept of final decree in a partition suit is different from the concept of final decree in a mortgage suit - Consequently, an application for a final decree in a mortgage suit is different from an application for final decree in a partition suit. HELD: `Partition' is a re-distribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees - The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty - A partition of a property can be only among those having a share or interest in it - A person who does not have a share in such property cannot obviously be a party to partition - `Separation of share' is a species of `partition' - When all co-owners get separated, it is a partition - Separation of share/s refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds - In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff's share in the suit properties, but also division of his share by metes and bounds - This involves three issues (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner the property/properties should be divided by metes and bounds. HELD: Cases have been found where a suit is decreed or a preliminary decree is granted within a year or two and the final decree proceeding and execution takes decades for completion - This is an area which contributes to considerable delay and consequential loss of credibility of the civil justice system - Courts and lawyers should give as much importance to final decree proceedings and executions, as they give to the main suits - A conceptual change regarding civil litigation, is required so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant - It is hoped that the Law Commission and Parliament will bestow their attention on this issue and make appropriate recommendations/amendments so that the suit will be a continuous process from the stage of its initiation to the stage of securing actual relief - The present system involving a proceeding for declaration of the right, a separate proceeding for quantification or ascertainment of relief, and another separate proceeding for enforcement of the decree to secure the relief, is outmoded and unsuited for present requirements - The Code of Civil Procedure should provide for a continuous and seamless process from the stage of filing of suit to the stage of getting relief - In so far final decree proceedings are concerned, there is no reason for even legislative intervention - As the provisions of the Code stand as on date, initiation of final decree proceedings does not depend upon an application for final decree for initiation (unless the local amendments require the same) - Practice and Procedure. Case Law Reference: AIR 1929 Oudh 456 relied on para 8 AIR 1945 Bom. 338 relied on para 8 AIR 1957 AP 40 relied on para 8 AIR 1965 Kar. 73 relied on para 8 AIR 1983 Orissa 121 relied on para 8 AIR 1989 Ker. 289 relied on para 8 AIR 1967 SC 1470 relied on para 8 2007 (2) SCC 355 relied on para 8 2008 (8) SCC 198 relied on para 8 CIVIL APPELLATE JURISDICTION : SLP (Civil) No. 17932/2009. From the Judgment and Order dated 15.1.2009 of the High Court of Judicature at Patna in C.R. No. 2216/2008. S.B. Sanyal and Subhro Sanyal for the Petitioner.

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                                                                Reportable                  IN THE SUPREME COURT OF INDIA              ...
Monday, December 19, 2011

Code of Civil Procedure, 1908 - Order XVI, Rules 1 and 2 r/w s.151 - Partition suit - Defendants filed application for permission to file a list of witnesses, which included the name of the plaintiff's Advocate - Trial Court granted the defendants the leave to file the list of witnesses but rejected their prayer for permission to cite the plaintiff's advocate as a witness on ground that no reason therefor was assigned in the application - Justification of - Held: Justified - If the parties to the litigation are allowed to file list of witnesses without indicating the purpose for summoning the particular person(s) as witness(es), the unscrupulous litigants may create a situation where the cases may be prolonged for years together - Such litigants may include the name of the advocate representing the other side as a witness and if the Court casually accepts the list of witnesses, the other side will be deprived of the services of the advocate - Therefore, it would be a prudent exercise of discretion by the Court to insist that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness - In the instant case, the concerned advocate was engaged by the plaintiffs almost 11 years prior to the filing of application by the defendants - During this long interregnum, the defendants never objected to the appearance of the plaintiff's advocate by pointing out that he was interested in the subject matter of the suit - The prayer made by the defendants for being allowed to cite the plaintiff's advocate as a witness was not only misconceived but also mischievous ex-facie with an oblique motive of boarding him out of the case. Constitution of India, 1950 - Articles 226 and 227 - Interlocutory order passed by Subordinate Court - Challenge to - Exercise of powers under Arts. 226 and 227 - Scope - Held: In the instant case, the High Court totally ignored the principles and parameters laid down by this Court for exercise of power u/Articles 226 and 227 of the Constitution qua an interlocutory order passed by the Subordinate Court and set aside the order of the trial Court without assigning any tangible reason. Advocates - Relationship between lawyer and his client - Duty imposed upon an Advocate - Discussed - Held: An Advocate cannot ordinarily withdraw from engagement without sufficient cause and without giving reasonable and sufficient notice to the client - If an Advocate has reason to believe that he will be a witness in the case, he should not accept a brief or appear in the case - Principles of `uberrima fides' - Bar Council of India Rules, 1975 - Rules 12, 13, 14 and 15 of Section II, Chapter II of Part IV. Appellant Nos.1 to 3 and one other person filed suit for partition and separate possession of 1/6th share each in the suit property and also for grant of a declaration that sale deed dated 10.7.1997 executed by appellant Nos.4 to 6 was not binding on them. Respondent Nos.1 and 2 filed written statement, and subsequently, also filed an application under Order XVI Rule 1(1) and (2) read with Section 151 C.P.C. supported by an affidavit of respondent No.1 for permission to file the list of witnesses, which included the name of `NRK', the Advocate who had been representing the appellants in the suit from the very beginning. The trial Court partly allowed the application of respondent Nos.1 and 2 and granted them leave to file the list of witnesses but rejected their prayer for permission to cite `NRK' as a witness on ground that no reason therefor was assigned in the application. The respondents challenged the order of the trial Court by filing a petition under Articles 226 and 227 of the Constitution insofar as their prayer for citing `NRK' as a witness was rejected. The High Court allowed the petition and set aside the order of the trial Court holding that reasons were not required to be assigned to justify the summoning of a particular person as a witness. In the instant appeal, the questions arising for consideration were: 1) whether the High Court committed serious error by interfering with the order of the trial Court without recording a finding that the said order was vitiated due to want of jurisdiction or any patent legal infirmity in exercise of jurisdiction; and 2) whether a litigant filing the list of witnesses is bound to indicate, howsoever briefly, the relevance of the witness to the subject matter of the suit etc., and, in any case, one party to the proceedings cannot cite the advocate representing the other side as a witness and thereby deprive the latter of the services of the advocate without disclosing as to how his testimony is relevant to the issues arising in the case. =Allowing the appeal, the Court HELD:1. The High Court totally ignored the principles and parameters laid down by this Court for exercise of power under Articles 226 and 227 of the Constitution qua an interlocutory order passed by the Subordinate Court and set aside the order of the trial Court without assigning any tangible reason. [Para 10] [427-H; 428-A-B] Surya Dev Rai v. Ram Chander Rai and others (2003) 6 SCC 675 and Shalini Shyam Shetty v. Rajendra Shankar Patil (2010) 8 SCC 329 - relied on. 2.1. The relationship between a lawyer and his client is solely founded on trust and confidence. A lawyer cannot pass on the confidential information to anyone else. This is so because he is a fiduciary of his client, who reposes trust and confidence in the lawyer. Therefore, he has a duty to fulfill all his obligations towards his client with care and act in good faith. Since the client entrusts the whole obligation of handling legal proceedings to an advocate, he has to act according to the principles of uberrima fides, i.e., the utmost good faith, integrity, fairness and loyalty. [Para 12] [428-F-G] 2.2. The duties of an advocate to the Court, the client, opponent and colleagues are enumerated in Chapter II of Part IV of the Bar Council of India Rules, 1975. Rules 12, 13, 14 and 15 of Section II, Chapter II of Part IV of the Rules, regulate the duty of an advocate to the client. An analysis of the above Rules show that one of the most important duty imposed upon an advocate is to uphold the interest of the client fearlessly by all fair and honourable means. An advocate cannot ordinarily withdraw from engagement without sufficient cause and without giving reasonable and sufficient notice to the client. If he has reason to believe that he will be a witness in the case, the advocate should not accept a brief or appear in the case. [Paras 13, 14] [428-H; 429-A-B; H; 430-A] 2.3. If the prayer made by the respondents for being allowed to cite `NRK' as a witness is critically scrutinized in the backdrop of the duties of an advocate towards his client, it is clear that the same was not only misconceived but was mischievous ex-facie. Neither in the written statement nor the additional written statement filed by them before the trial Court, the respondents had attributed any role to `NRK' in relation to the subject matter of the suit. The concerned advocate was engaged by the plaintiffs- appellants in 1996 i.e. almost 11 years prior to the filing of application by the respondents under Order XVI Rule 1(1) and (2) read with Section 151 CPC. During this long interregnum, the respondents never objected to the appearance of `NRK' as an advocate of the appellants by pointing out that he was interested in the subject matter of the suit. Notwithstanding this, the respondents cited him as a witness in the list filed along with the application. The sole purpose of doing this was to create a situation in which the advocate would have been forced to withdraw from the case. Luckily for the appellants, the trial Court could see the game plan of the respondents and frustrated their design by partly dismissing the application. The Single Judge of the High Court ignored that the respondents had included the name of `NRK' in the list of witnesses proposed to be summoned by them with an oblique motive of boarding him out of the case and passed the impugned order by recording one line observation that the respondents were not required to give reasons for summoning the particular person as a witness. [Para 15] [430-G-H; 431- A-D] 2.4. If the parties to the litigation are allowed to file list of witnesses without indicating the purpose for summoning the particular person(s) as witness(es), the unscrupulous litigants may create a situation where the cases may be prolonged for years together. Such litigants may include the name of the advocate representing the other side as a witness and if the Court casually accepts the list of witnesses, the other side will be deprived of the services of the advocate. Therefore, it would be a prudent exercise of discretion by the Court to insist that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness. The impugned order of the High Court is set aside and the one passed by the trial Court is restored. The respondents shall pay cost of Rs.50,000/- to the appellants. [Para 16] [431-E-H] Mange Ram v. Brij Mohan (1983) 4 SCC 36 and V. C. Rangadurai v. D. Gopalan (1979) 1 SCC 308 - relied on. Case Law Reference: (2010) 8 SCC 329 relied on Para 6, 9 (1983) 4 SCC 36 relied on Para 6, 11 (2003) 6 SCC 675 relied on Para 7, 8 (1979) 1 SCC 308 relied on Para 14 CIVIL APPELLLATE JURISDICTION : Civil Appeal No. 2015 of 2011. From the Judgment & Order dated 24.2.2010 of the High Court of Karnataka at Bangalore in W.P. No. 2610 of 2007 (GM-CPC). Krian Suri for the Appellants. S.N. Bhat for the Respondents.

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