1972 (8) TMI 143 - SC - Indian Laws

Summary

Issues Involved:
1. Inherent Power of Sale by Court
2. Withdrawal of Suit under Order 23, Rule 1 of CPC
3. Timing of Request under Section 2 of the Partition Act
4. Right of Defendant under Section 3 of the Partition Act

Detailed Analysis:

1. Inherent Power of Sale by Court:
The High Court addressed whether the court has an inherent power to order the sale of property that is not capable of division apart from the provisions of the Partition Act. The court concluded that the Partition Act confers specific powers of sale in certain circumstances and no general power of sale could be inferred from the Act. It was held that the plaintiff had invoked Section 2 of the Partition Act and thus could not withdraw the suit under the circumstances.

2. Withdrawal of Suit under Order 23, Rule 1 of CPC:
The main issue was whether the trial court could allow the withdrawal of the suit. Order 23, Rule 1 of the CPC allows the plaintiff to withdraw the suit at any time. However, the court has discretion to refuse if a vested right has come into existence in favor of the defendant. The Supreme Court noted that the Partition Act's provisions must be considered, and the plaintiff's request for sale under Section 2 and the defendant's application under Section 3 create a scenario where the plaintiff cannot unilaterally withdraw the suit without affecting the defendant's rights.

3. Timing of Request under Section 2 of the Partition Act:
The High Court addressed the timing for making a request under Section 2 and concluded that the request must be considered by the trial judge. The Supreme Court underscored that once a request is made under Section 2 for the sale of property, the court is bound to proceed with the valuation and offer to sell the share to the shareholder applying under Section 3.

4. Right of Defendant under Section 3 of the Partition Act:
The defendant's right to compel the plaintiff to sell his share at a valuation under Section 3 was a significant issue. The court held that once the plaintiff requests a sale under Section 2, and the defendant applies under Section 3 to buy the share, the court must order a valuation and offer to sell the share to the defendant. This right or privilege of the defendant cannot be defeated by the plaintiff's withdrawal of the suit. The court emphasized that the defendant gains an advantage or privilege under Section 3 that the plaintiff cannot nullify by withdrawing the suit.

Conclusion:
The Supreme Court dismissed the appeal, affirming that the plaintiff could not withdraw the suit after invoking Section 2 of the Partition Act and the defendant's application under Section 3. The court held that the defendant's right to buy the plaintiff's share at a valuation must be respected, and the trial court must proceed with the valuation and sale process as mandated by the Partition Act. The parties were directed to bear their own costs.