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TMI Blog1972 (8) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... s to expire on April 30, 1967. As we are concerned only with the cinema property in the present case it is unnecessary to refer to the pleadings relating to other properties belonging to the two brothers. In para 11 of the plaint it was pleaded that having regard to the nature of the property it was not possible or feasible or convenient to divide it into two halves by metes and bounds. It was prayed that the court in exercise of its inherent jurisdiction should direct the property to be sold by public auction and pay the plaintiff his I share in the net proceeds, the sale being subject to the lease in favour of Isherdas Sahni Bros. In the written statement filed by Raja Rajeswara Rao it was denied that the Odeon Cinema property was not capable of division into two halves by metes and bound and it was averred that such a division was not only possible but. it would be also just and proper. The right of the plaintiff in the suit to invoke the inherent powers of the court for a decree for sale was denied. Paras 6 and 7 are reproduced below : 6. The defendant submits that the suit property is very easily capable of division by metes and bounds into two shares. The defendant wan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, took the view that so long as a preliminary decree had not been passed in the partition suit it was open to the plaintiff to withdraw the same. Considering the question whether liberty should be granted to bring a fresh suit under Order 23, Rule 1, the trial judge treated it to be axiomatic that in a suit for partition or redemption when a plaintiff withdraws his suit he will be entitled to file a fresh suit as the cause of action is' a recurring one. This is what the trial judge said :- Even if the plaintiff is not granted permission, under Order 23, rule 1, Civil Procedure Code, he will nevertheless have a right to file a suit for partition at any time he pleases. In view of this obvious right of the plaintiff, it has to be held that the plaintiff is entitled, particularly, in terms of Order 23, Rule 1, to bring a fresh suit. The suit was dismissed as withdrawn. On October 14, 1966, Raja Maheswara Rao sold his half share in Odeon to N. C. Subramaniam and his sons who in their turn sold that share to Isherdas Sahni Bros. (P) Ltd. on January 19, 1970. Raja Rajeswara Rao who was defendant in the original suit filed an appeal to the Division Bench of the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person competent to represent the estate of the deceased Raja Maheswara Rao. Another petition C. M. P. 1781/72 was filed in this Court by Isherdas Sahni Bros. (P) Ltd. on the ground that the said company was the assignee of late Raja Maheswara Rao and was still his legal representative and should be impleaded in his place. On July 18, 1972 this Court allowed Smt. Padmini to be impleaded as appellant but declined the prayer for substitution as appellant of Isherdas Sahni Bros. (P) Ltd. The company was, however, allowed to intervene in the appeal. Learned counsel for the parties agreed before us that the only question which survives and which requires our decision is whether in the circumstances of the present case the trial court could allow withdrawal of the suit. This involves the determination of the correct position under Order 23, Rule 1 of the C.P.C., in respect of a suit for partition of joint property in which the provisions of the Partition Act have been invoked or are sought to be applied. Order 23, Rule 1, of the C. P. C., to the extent it is material, is as follows O.23, R. 1. At any time after the institution of the suit the plaintiff may, as against all or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the appellant it has been contended that under O.23, R. 1 there is an unqualified right to withdraw the suit if the plaintiff does not wish to proceed with it. It is conceded that if any vested right comes into, existence before the prayer for withdrawal is made the court is not bound to allow withdrawal; but it is suggested that this can happen only in very limited circumstances i.e., where a Preliminary decree had been passed or in those cases whether a set off has been claimed or a counter claim has been made. According to the appellant no preliminary decree bad been passed in the present suit and thus no vested right had come into existence in favour of the defendant. There was no question of any counter claim or set off and therefore the trial court was fully justified in allowing withdrawal of the suit. If the matter were to be viewed only in the above light the appellant's contention would have 'a good 'deal of force. But the nature and incidents of a Partition suit and the consequences which ensue once the provisions of the Partition Act are invoked or sought to be applied must be considered before the contentions of the appellant's counsel can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e share or shares of the party or parties asking for sale. In such a situation it has been made obligatory that the court shall order a valuation of the share or shares and offer to sell the same to the shareholder who has applied for leave to buy the share at a price ascertained by the court. other words if a-plaintiff in a suit for partition has invoked the power of the court to order sale instead of division in a partiton suit under S. 2 and the other shareholder undertakes to buy at a valuation the share of the party asking for sale the court has no option or choice or discretion left to it any it is bound to order a valuation of the shares in question and offer to sell the same to the shareholder undertaking or applying to buy it at a valuation. The purpose underlying the section undoubtedly appears to be to prevent the property falling into the hands of third parties if that can be done in a reasonable manner. It would appear from the objects and reasons for the enactment of the Partition Act that as the law stood the court was bound to give a share to each of the parties and could not direct a sale or division of the proceeds. There could be, instances where there were insu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly decision in. which the point under consideration has been directly considered is that of Viswanatha Sastri J., in Hasan Badsha v. Sultan Raziah Begum. (A.I.R. 1949 Mad. 772) There both parties had conceded that the property was incapable of being divided by metes and bounds and that it should be sold under the provisions of the Partition Act. The defendant applied to Purchase the property under s. 3. A Commissioner was also appointed to report whether the property was capable of division and lie reported that it could not be divided by metes and bounds. The plaintiff sought to withdraw the suit. It was held that he was entitled to do so because the court had not made a valuation and an order that the half share of the plaintiff should be conveyed to the defendant on the valuation determined by the court. It might be that an advantage had accrued to the defendant as regards the admissions made in the plaint about the impracticability of dividing the property. That did not clothe the defendant with any enforceable right and did not prevent the plaintiff from exercising the right of a suitor to withdraw the suit. This authority has also been strongly relied upon for the similarity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectively to the extent of one moiety or upwards. 2. When a request is made under s. 2 to the court to direct a sale any other shareholder can apply under S. 3 for leave to buy at a valuation the share of the other party asking for a sale. 3. The court has to order valuation of the share of the party asking for sale. 4. After the valuation has been made the court has to offer to sell the share of the party asking for sale to the shareholder applying for leave to buy under S. 3.- 5. If two or more shareholders severally apply for leave to buy the court is bound to order a sale of the share or shares so the shareholder who offers to pay the highest price above the valuation made by the court. 6. If no shareholder is willing to buy such share or shares at the price so ascertained the application under s. 3 shalt be dismissed, the applicant being liable to pay all the costs. A question which presents a certain amount of difficulty is at what stage the other shareholder acquires a privilege or a right. under s. 3 when proceedings are pending in a partition suit and a request has been made by a co-owner owning a moiety of share that a sale be held. One of the essential c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r S.2 instead of partitioning it. Apart from these consideration it would also enable the plaintiff in a partition suit to withdrawal that suit and defeat the defendants claim which, according to Crump cannot be done even in a suit where the provisions of the Partition Act have not been invoked. In the argument of the learned counsel for the appellant em- phasis has been laid on the fact that in the present case the court did not give any finding that the property was not capable of division by metes and bounds. It is thus pointed out that the essential condition for the application of s. 2 of the Partition Act had not been satisfied and S. 3 cannot be availed of by the respondent unless it had first been found that the property could be put to sale in the light of the provisions of s. 2. This submission has hardly any substance inasmuch as the trial court had prima facie come to the conclusion that a division by' metes and bounds was not possible. That was sufficient so far as the proceedings in the present case were concerned. The language of s. 3 of the Partition Act does not appear to make it obligatory on the court to give a positive finding that the property is incapab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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