Calcutta High Court
Rabindra Kumar Mehra vs Tara Chand Mehra & Ors on 14 July, 2023
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA No: GA 22 of 2019
(Old No: GA 2775 of 2019)
In CS 90 of 2012
Rabindra Kumar Mehra
Versus
Tara Chand Mehra & Ors.
Mr. Abhrajit Mitra, Sr. Adv.
Mr. Satadeep Bhattacharyya
Ms. Sonia Sharma
... for the plaintiff.
Mr. Lalratan Mandal
...for the defendant no. 1.
Mr. Sankarsan Sarkar
Mr. Aditya Kanodia
Mrs. Bani Ghosh
Ms. S. Sardar
...for the defendant no. 2.
Mr. Rajib Ray
Ms. Sohini Kundu
...for the defendant nos. 4 & 5.
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Mr. Rahul Karmakar
Ms. Papiya Roy
...for defendant no. 3 series.
Hearing Concluded On : 10.05.2023
Judgment on : 14.07.2023
Krishna Rao, J.:
1. By an order dated July 8, 2019, this Court had passed the following
order:
"This is a suit for partition. All the parties are
represented by their respective Counsels. It is agreed by
the Learned Counsels that the suit may be decreed.
Accordingly, the suit be and the same is decreed in
preliminary form. It is declared that the plaintiffs and
the defendants are entitled to their respective shares
indicated in paragraph 19 of the plaint. Such shares
are, accordingly, declared. Decree be drawn up
expeditiously.
To effect the partition in between the co sharers by
metes and bounds let a Commissioner of Partition be
issued to cause partition of the suit property. The
Commissioner of Partition shall complete the partition
work within three months.
Mr. Gautam Kumar Ray, Learned Advocate
(9073911724) is hereby appointed Commissioner for
Partition for the purpose as aforestated.
For the present the Commissioner of Partition will
be paid a sum of Rs. 25,000/- which shall be borne by
the parties in equal share and be paid within fortnight.
However, further remuneration will be considered after
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the report is filed by the Commissioner of Partition in
Court, after the partition is completed. The
Commissioner is also permitted to take assistance of
any surveyor, if he deems fit, but after obtaining leave
of this court.
Parties will be at liberty to pray for final decree
after Commissioner of Partition files report."
2. Being aggrieved with the order dated July 8, 2019, the defendant No. 3
had preferred an appeal before the appellate Court being APO No. 137
of 2019 and the Hon'ble Appeallate Court by an order dated 11th
November, 2019 had dismissed the appeal filed by the defendant No.3
on the ground of maintainability without going into the merits of the
matter.
"The appeal is not maintainable since the opening
paragraph of the preliminary decree dated July 8, 2019
which is challenged in this appeal read as follows:
"This is a suit for partition. All the parties are
represented by their respective Counsels. It is
agreed by the learned Counsels that the suit may
be decreed. Accordingly, the suit be and the same
is decreed in preliminary form. It is declared that
the plaintiffs and the defendants are entitled to
their respective shares indicated in paragraph 19
of the plaint. Such shares are, accordingly,
declared. Decree be drawn up expeditiously. "
It is elementary that a Court is the master for
recording what transpires before it and once a Court
has recorded that the representatives of the parties had
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submitted to the decree or had agreed to a form of an
order, nothing contrary to what is so recorded may be
accepted. It is equally rudimentary that when a party
submits to a decree or accepts a position and such
acceptance is recorded in the order of the relevant
Court, no appeal may be filed by such party against the
relevant order.
In view of the recording as quoted above, the
appeal is not maintainable. If it is the appellants'
understanding or perception that what has been
recorded in the order dated July 8, 2019 as quoted
above is not an appropriate recording of what transpired
before the Court at the time of the hearing, it will be
open to the appellants to take out an appropriate
application before the court of the first instance.
APO No. 137 of 2019 along with GA No. 2005 of 2019
are dismissed as not maintainable without going into
the merits of the matter."
3. After dismissal of the appeal, the defendant No.3 has filed the present
application being G.A 22 of 2019 in CS No. 90 of 2012 for recalling of
the order dated July 8, 2019 passed in CS No. 90 of 2012 and fixing
the case for argument.
4. Mr. Rahul Karmakar, the learned Advocate representing the defendant
No.3 submits that the plaintiff has filed the suit praying for preliminary
decree and final decree for partition of the Premises No.13, Rabindra
Sarani, Kolkata - 700073, by metes and bounds and in the alternative,
by sale and division of the sale proceeds in accordance with the shares
of the parties as per para 19 of the plaint and other prayers.
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5. Mr. Karmakar submitted that the defendants are contesting the suit by
filing written statement and the defendant No.3 had also filed written
statement along with counter claim with respect of an amount of
Rs.11,93,935/- towards the claim of money which is spent on account
of repairs of the joint property.
6. Mr. Karmakar submitted that on July 7, 2014 when the suit was taken
up for hearing, this Court in presence of the learned Advocate
appearing on behalf of the plaintiff and the defendant no.1 passed a
preliminary decree by holding that there is clear admission in the
written statement filed by the defendants with respect of their share
and also appointed Partition Commissioner to effect partition to the
property. As the defendant No.3 had not given consent for passing
preliminary decree, therefore the defendant No.3 had filed an
application for recalling of the order dated July 7, 2014 but this Court
had dismissed the said application. Being aggrieved with the order, the
defendant no.3 had preferred an appeal before the Appellate Court
being APOT No. 545 of 2014. By an order dated September 26, 2014,
the Appellate Courthad disposed of the said appeal by passing the
following order:
"In that view of the matter, having regard to
the entire pleadings and the stand of the
appellant-plaintiff, no prejudice would be caused
to the respondents if the order of 7.7.2014 is
recalled as the respondents would still be having
an opportunity to contend that there was already
a settlement in 1996 and the parties are bound
by the same. Ultimately, it would be for the Trial
Court to decide whether the suit has to be
allowed for partition by metes and bounds or
there was already a settlement which has to be
implemented. Accordingly, the impugned order is
set aside recalling the order dated 7.7.2014
whereby the parties are allowed to participate in
the proceedings of the suit and get the suit
disposed of on merits. "
7. Mr. Karmakar submitted that after the remand of the suit by the
Appellate Court, the parties to the suit have adduced their respective
evidence and on completion of the evidence of all the parties, this Court
had fixed the matter for argument on January 4, 2017.
8. Mr. Karmakar submitted that lastly the matter was listed on July 8,
2019 under the heading "To be Mentioned". He submits that as the
matter is fixed under the heading to be mentioned and the date will be
fixed for argument accordingly the advocate on record being a junior
member of the bar was sent to the Hon'ble Court to attend the matter
and to take date for argument. He further submits that the learned
junior member of the bar was unable to understand the implications of
the order which was being passed by this Court and as such
inadvertently, the consent of the defendant no.3 in decreeing the suit in
preliminary form was recorded.
9. Mr. Karmakar submitted that the defendant No.3 since inception of the
suit is contesting the suit and the defendant No.3 had taken a specific
plea to enforce the amicable partition effected 20 years back. He also
submits that the Hon'ble Division Bench while remanding the matter
by an order dated September 26, 2014 parties were allowed to
participate in the proceeding of the suit and get the suit disposed of on
merit but by an order dated July 8, 2019, this Court had passed the
impugned order without looking into the order passed by the Appellate
Court as well as the written statement and counter claim filed by the
defendant No.3.
10. Mr. Karmakar submitted that the consent recorded in the impugned
order nullifies the order passed by the Hon'ble Division Bench and the
amicable family partition that had been executed and partly acted upon
by the parties hereto and reveals that the suit property is sold out. He
submits that this Court ought not to have been taken the matter for
hearing as the matter was listed under the heading "To be Mentioned".
11. Mr. Karmakar submitted that due to inadvertence and
misunderstanding of the defendant No. 3 with the consequences of the
nomenclature in the listing, the learned Senior Counsel for the
defendant No.3 was unable to be present appropriately on the date of
hearing and as such, the correct state of affairs and assistance could
not be provided to this Court.
12. Mr. Karmakar submitted that the impugned order dated July 8, 2019 is
not recalled and the defendant No.3 is not given an opportunity to
argue the case on the issue of implementation of the family partition
deed, the defendant no.3 will suffer irreparable loss an injury.
13. Mr. Karmakar in support of his case has relied upon the following
judgments:
i. 64 Ind Cas 228 (Khitipati Roy - vs- Dharani Mohan
Mookerjee).
ii. (2008) 2 SCC 280 (Oriental Bank of Commerce - vs-
Sunder Lal Jain and Another).
iii. (2006) 11 SCC 114 (Rama Narang -vs- Ramesh
Narang & Another).
iv. 1939 SCC OnLine Cal 312 (Raj Kumar and Anr -vs-
Shiva Prasad Gupta & Others).
v. (R. Rajanna -vs- S.R. Venkataswamy & Ors) in Civil
Appeal Nos. 10416 -10417 of 2014.
vi. (2021) 3 SCC 702 (Compack Enterprises India
Private Ltd. -vs- Beant Singh).
vii. Pushpa Devi Bhagat (D) Th. Lr. Smt. -vs- Rajinder
Singh & Ors in Civil Appeal No. 2896 of 2006.
14. Mr. Abhrajit Mitra, learned Senior Advocate representing the plaintiff
submits that the defendant No. 3 has filed the present application for
recalling of the preliminary decree passed by this court dated July 8,
2019 but the defendant No. 3 had admitted in paragraph 10 of the
written statement with respect of 1/5th share each of the parties. He
further submits that the defendant No.3 has filed the present
application mainly on the ground that there was an amicable
settlement on October 6, 1996 and August 6, 1997 but no such
evidence was brought on record during the evidence with regard to
such settlement.
15. Mr. Mitra, learned Senior Advocate submitted that on completion of
evidence when the matter was heard on January 5, 2018, the
defendant No.2 came with a proposal that the said premises may be
sold and the proceeds can be distributed between the parties to the
suit. He submits that at the time of said proposal, the learned Counsel
for the defendant No.3 was present and as per his prayer to seek
instructions, the matter was adjourned though other parties to the suit
were agreeable.
16. Mr. Mitra, learned Senior Advocate submitted that in the impugned
order, this Court expressly recorded that all the parties through their
respective counsels had agreed to a preliminary decree being passed in
the partition suit with the shares of the parties as indicated in
paragraph 19 of the plaint i.e. 1/5th share each.
17. Mr. Mitra, learned Senior Advocate submitted that the defendant No.3
has filed a counterclaim and the said counter claim has not been
decreed. He submits that as per Order VIII, Rule 6A and 6F of the Code
of Civil Procedure, 1908 counterclaim is an independent suit and
should be treated as plaint. He submits that the counterclaim of the
defendant No.3 is pending for adjudication.
18. Mr. Mitra, learned Senior Advocate submitted that in the appeal filed by
the defendant no.3, it is stated that the counsel for the defendant who
had appeared on that day had not given consent and the consent was
wrongly recorded in the impugned order. On the basis of the said
submission and averments in the Memorandum of Appeal of the
defendant no. 3, the Appellate Court had given liberty to the defendant
No. 3 to take out an application before this Court. He submits that it
was not the case of the defendant No.3, in the appeal that the Counsel
for the defendant No.3 had given consent but without authority.
19. Mr. Mitra, learned Senior Advocate submitted that the defendant No.3
had made out a completely different case in the present application
from the appeal preferred by the defendant against the order in
question. He submits that in appeal the defendant No.3 had made out a
case that the Counsel for the defendant No.3 had given consent but
had no instructions to do so and consent was given inadvertently but in
the present application, the defendant no.3 has made out a case that
the matter will not be heard on the date fixed for argument.
20. Mr. Mitra, learned Senior Advocate submitted that the defendant No.3
is estopped by applying the doctrine of estoppel by pleading and
making out completely new case inconsistent with the case in appeal.
He submits that an application is in effect and substance an
application for review cannot be entertained unless it is in compliance
with Order XLVII of the Code of Civil Procedure, 1908. He submits that
an application for review and fresh hearing in the grab of an application
for recalling cannot be entertained.
21. Mr. Mitra learned Senior Advocate relied upon the following judgments:
i. 2015 SCC OnLine Cal 3642 (Adhir Ranjan Kar -vs-
Atanu Kumar Mondal & Anr.).
ii. (2015) 8 SCC 519 (Dharampal Satyapal Limited -
vs- Deputy Commissioner of Central Excise,
Gauhati and Others).
iii. (2003) 8 SCC 673 (Sushil Kumar -vs- Rakesh
Kumar).
iv. (2004) 12 SCC 713 (Ram Chandra Singh -vs-
Savitri Devi and Others).
v. (1999) 4 SCC 396 (Budhia Swain and Others -vs-
Gopinath Deb and Others).
vi. (2006) 7 SCC 756 (Jai Narain Parasrampuria
(dead) and Ors. - vs - Pushpa Devi Saraf and Ors).
22. Mr. Sankarsan Sarkar, learned Advocate representing the defendant
No. 2 submitted that the defendant No.3 is in illegal occupation of
various parts of the suit property which belongs to other parties and
the evidence tendered by the defendant No.3 would establish that the
defendant No.3 has failed to prove his case. He submits that the
defendant No.3 had agreed before this Court for a consent order and
after expiry of almost 50 days, first time objected to the consent in the
appeal was filed on August 27, 2018 and by an order dated July 8,
2019, the Advocate Commissioner had already been appointed and the
Advocate Commissioner had taken substantial steps.
23. Mr. Sarkar submitted that the defendant No.3 had suppressed the
order dated June 5, 2018 passed in the present suit wherein the
defendant No.3 had sought time to take instruction in the matter of
passing of a consent decree on the proposal made by the defendant
No.2.
24. Mr. Sarkar submitted that the matter was listed on December 6, 2018
but none appeared except the defendant No. 2 and the matter was
adjourned with direction to serve notice on other parties. Accordingly,
notice was served upon all the parties including the defendant No.3 and
finally, the matter was taken on July 8, 2019 under the heading "To be
Mentioned" and on the date fixed, all the parties were present and with
the consent of all the parties this Court had passed an order.
25. Mr. Sarkar reiterated the submissions made by the learned Senior
Advocate Mr Mitra. He relied upon the judgment reported in (2009) 9
SCC 689 (Shub Karan Bubna -vs- Sita Saran Bubna and Others).
26. Heard the learned counsel for the respective parties, perused the
materials on record and the judgments relied upon by the parties.
27. On earlier occasion by an order dated July 7, 2014, this Court passed
the following order:
"In view of the clear admission in the written
statement filed by the defendants with regard to the
shares as mentioned in paragraph 19 in the plaint,
there shall be a preliminary decree for partition of
premises No. 13, Rabindra Sarani, Kolkata - 700073,
more fully described in schedule - 'B' herein, by
meters and bound. The learned counsel submits, at
this stage, that none of the parties would have any
objection if the terms of settlement arrived at between
the parties are implemented. Since it involves the
question of implementation of the terms of settlement,
it is desirable that a Commissioner of Partition be
appointed to give effect to the terms of settlement and
partition the property on the basis of the terms
recorded in the said terms of settlement and before
this court as recorded in the subsequent paragraph.
The learned counsel for the parties, however,
agreed that in so far as the ground floor is concerned
and as recorded in the terms of settlement that it
would remain common to all the aforesaid persons
requires variation as it would not be possible to
partition the same by metes and bounds having regard
to the fact that there are some occupiers and tenants
at the ground floor and are not fully in occupation of
the parties. In view of the agreement reached before
this Court by the Parties, in so far as the ground floor
is concerned, the partition should be effected taking
into consideration the aforesaid facts and the
agreement reached between the parties.
Miss. Piyali Sengupta, a member of the Bar
Library Club is appointed as Commissioner of
Partition. She would effect partition of the property on
the basis of the terms of settlement annexed to the
plaint and the agreement reached between the parties
in Court as recorded above in respect of the ground
floor.
The parties are directed to assist the
Commissioner of Partition in demarcating the areas
according to the shares as declared in the preliminary
decree. The Commissioner of Partition is directed to file
the return of the commission within a period of six
weeks from the date of communication of this order.
The suit is, accordingly, decreed in preliminary
form.
The department is directed to draw up the
preliminary decree as expeditiously as possible.
The Commissioner of Partition shall be paid an
initial remuneration of 1500 GMs to be shared by the
parties equally. "
The plaintiff had challenged the said order in an appeal being
APOT No. 545 of 2014 and the Appellate Court disposed of the said
appeal on September 26, 2014 as mentioned in para 6 (supra). In the
said appeal, the Hon'ble Division Bench has taken into consideration of
the pleading of all the parties of the suit and directed to dispose of the
suit on merit. After the order of the Appellate Court, the parties have
led evidence and after closing the evidences of all the parties, this Court
had fixed the matter for argument on January 4, 2017. Since, then the
matter was fixed for argument and on June 5, 2018, the Counsel
appearing for the defendant No.2 has come with the proposal that the
property in question being the four storied building be sold off and the
proceeds be distributed between the parties to the suit. Counsel for the
defendant No. 3 has sought for adjournment for taking instructions.
Thereafter the matter was listed on December 3, 2018 but none
appeared except the defendant No. 2 and on December 6, 2018, the
Counsel for the defendant No. 2 had circulated a notice. The matter
was listed on January 21, 2019 but none appeared on behalf of either
of the parties, accordingly, the matter was adjourned till the month of
February' 2019. On July 8, 2019, the matter was listed as"To be
Mentioned" and the order was passed for preliminary decree.
28. In the order dated July 8, 2019, it is recorded that all the parties are
represented by their respective Counsels. It is agreed by the learned
Counsels that the suit may be decreed. Accordingly, the suit be and the
same is decreed in preliminary form. It is declared that the plaintiffs
and defendants are entitled to their respective shares indicated in
paragraph 19 of the plaint. Such shares are, accordingly, declared.
29. The defendant No.3 in the Memorandum of Appeal against the order
dated July 8, 2019 passed by this Court had taken the following
grounds :
"I. FOR THAT the Learned Judge erred in law and
on facts in passing the impugned Judgment dated
8th July, 2019.
II. FOR THAT the Learned Judge erred in law and
on fact while recording that the learned counsel
have that agreed the suit may be decreed when
as a matter of fact, the Learned Advocate for the
Appellant never agreed to anything save and
except beyond the provision of law.
III. FOR THAT the Learned Judge erred in law
and on fact thereby without mentioning the exact
share purported to have been allotted to parties
save and except simple declaring the share.
IV. FOR THAT the Learned Judge erred in law
and on fact by not considering the written
statement with counter claim filed by the
appellant/defendant no. 3.
V. FOR THAT the Learned Judge erred in law and
on fact thereby not considering that the properties
were already partitioned by several MEMO OF
UNDERSTANDING'S dated 6th October, 1996, 6th
August, 1997 and on a Rs. 50.00/- Stamp Paper
Dated 23rd May, 1998.
VI. FOR THAT the Learned Judge exceeded his
jurisdiction while passing the impugned the
judgment dated 8th July, 2019.
VII. FOR THAT the Learned Judge has passed the
impugned Judgment without application of mind
and on mere surmises and without considering
the submissions made by the appellants at the
times of hearing.
VIII. FOR THAT the impugned Order is wrong,
erroneous, illegal and unsustainable both in law
and on facts.
IX. FOR THAT the impugned order should be set
aside, cancelled and/or quashed."
In the present application, the defendant No. 3 has made out the
following case in paragraph 15 of the present application:
"That being under an impression that a date of
argument was to be fixed on the said date and as
such, only instructed the Advocate-on-record
being a Junior Member of the Bar to take note of
the said date fixed for argument. The said
Learned Advocate being a Junior Member of the
Bar was unable to understand the implications of
the order which was being passed by the Hon'ble
Justice Sahidullah Munshi and as such,
inadvertently, the consent of your petitioners in
decreeing the suit in a preliminary form was
recorded. Your petitioners have been throughout
fighiting for the cause to protect the suit property
and enforce the amicable partition effected 20
years back. Your petitioners have already acted
along with the other parties in furtherance of the
said deed. The Hon'ble Division Bench while
remanding the matter also required the suit Court
to adjudicate on the issue as regards enforcement
of the said family partition. None of the above
were canvassed by any of the parties and on the
contrary, the order impugned had been made to
be passed without indicating the correct state of
affairs before His Lordship. "
30. In the case of Rama Narang (Supra),the Hon'ble Supreme Court held
that in passing the decree by consent, the Court adds its mandate to
the consent. A consent decree is composed of a command and a
contract. The Bombay High Court's view in Bajranglal Gangadhar
Khemka correctly represents the law that a consent decree is a contract
with the imprimatur of the Court. "Imprimatur" means "authorised" or
"approved". In other words by passing a decree in terms of a consent
order the Court authorises and approves the course of action consented
to. Moreover, the provisions of Order 23, Rule 3 of the Code of Civil
Procedure, 1908, require the court to pass a decree in accordance with
the consent terms only when it is proved to the satisfaction of the Court
that a suit has been adjusted wholly or in part by any lawful
agreement.
31. In the case of Pushpa Devi Bhagat (Supra), the Hon'ble Supreme
Court held that "the only remedy available to a party to a consent
decree to avoid such consent decree, is to approach the Court which
recorded the compromise and made a decree in terms of it, and
establish that there was no compromise. In that event, the Court which
recorded the compromise, will itself consider and decide the question as
to whether there was a valid compromise or not. This is so because a
consent decree, is nothing but contract between parties superimposed
with the seal of approval of the court. The validity of a consent decree
depends wholly on the validity of the agreement or compromise on
which it is made".
32. In the case of Compack Enterprises India Private Limited (Supra),
the Hon'ble Supreme Court held that it is well-settled that consent
decrees are intended to create estoppels by judgment against the
parties, thereby putting an end to further litigation between the parties.
Resultantly, this Court has held that it would be slow to unilaterally
interfere in, modify, substitute or modulate the terms of a consent
decree unless it is done with the revised consent of all the parties
thereto. However, this formulation is far from absolute and does not
apply as a blanket rule in all cases. This Court in Byram Pestonji
Gariwala v. Union Bank of India has held that the consent decree
could not serve as an estoppel, where the compromise was vitiated by
fraud, misrepresentation, or mistake. Further this Court in the exercise
of its inherent power may also unilaterally rectify a consent decree
suffering from clerical or arithmetical errors, so as to make it conform
with the terms of the compromise".
33. The main contention of the plaintiff and the defendant No.2 is that the
defendant No.3 has taken different ground in the appeal then the
averments made in the present application. It is the contention of the
plaintiff and the defendant no.2 that the defendant no.3 stated in the
appeal that the defendant No. 3 has not given consent and the consent
was wrongly recorded but in the present application it is mentioned
that the Advocate had given consent but had no instruction to do so
and as such the consent has been given inadvertently.
34. Mr. Mitra, learned Senior Advocaterelying upon the judgment in the
case of Sushil Kumar (supra) submitted that a person should not be
permitted to take advantage of his own wrong. He should either stand
by is a statement made before a Court of law or should explain the
same sufficiently. In absence of any satisfactory explanation, the Court
will presume that the statement before a Court is correct and binding
on the party on whose behalf of the same has been made.
35. Mr. Mitra relying upon the judgment of Jai Narain Parasrampuria
(Supra) submitted that while applying the procedural law like the
principle of estoppel or acquiescence, the Court would be concerned
with the conduct of a party for determination as to whether he can be
permitted to take a different stand in a subsequent proceeding, unless
there exists a statutory interdict.
36. In the present case, this Court passed preliminary decree by recording
that all parties are represented by the respective Counsels and it is
agreed by the learned Counsels that the suit may be decreed. It is the
specific case made by the defendant No.3 in the ground No.II of the
appeal, the Advocate for the appellant never agreed to anything save
and except beyond the provisions of law. In the present application, it is
contended that the learned Advocate being the junior member of the
Bar unable to understand the implication of the order which was being
passed by this Court and as such inadvertently, consent of your
petitioner indicating the suit in preliminary form was recorded. On
plain reading of both the contention of the defendant No.3, this Court
does not find that the defendant No.3 has made different statement in
both Courts. Accordingly, the principle of estoppel and acquiescence is
not applicable in the present case.
37. This Court by order dated July 8, 2019 while passing preliminary
decree declared the shares of the respective parties indicated in
paragraph 19 of the plaint. On earlier occasion also this Court by an
order dated July 7, 2014 passed Preliminary Decree on consent in
terms of paragraph 19 of the plaint. The plaintiff had challenged the
said order before the Appellate Court and the same submission was
made that the Senior Counsel who had the instruction was not present
at the time of submission on July 7, 2014 but it was junior without
understanding the implication of the order did not resist the claim of
the respondent. The Hon'ble Division Bench while deciding the said
appeal also held that it would be for the Trial Court to decide whether
the suit has to be allowed for partition by metes and bounds or there
was already a settlement which is to be implemented. The Hon'ble
Division Bench while setting aside the order dated July 7, 2014,
allowed the parties to participate in the proceedings of the suit and get
the suit disposed of on merits. After the order of the Hon'ble Division
Bench evidence of the parties were recorded and the matter was fixed
for argument. The defendant No.3 claiming partition in terms of the
settlement arrived in the year 1996 but the plaintiff and the defendant
No. 2 have not agreed with the said plea taken by the defendant No.3.
On October 7, 2021, the defendant Nos. 1, 4 and 5 have not objected
for recall the order dated July 8, 2019 but at the time of hearing of the
present application the said defendants have supported the argument
made by the plaintiff and the defendant no. 2.
38. Considering the above facts, this Court finds that since filing of the
written statement, the defendant no.3 has relied upon the settlement of
1996 and had also filed a counterclaim on the basis of the settlement
and at the time of passing the preliminary decree dated July 8, 2019,
the arguing Counsel of the defendant no. 3 was not present. None of
the parties brought to the notice of this Court with respect of the
counter claim or the order passed by the Hon'ble Division Bench dated
September 26, 2014. The Hon'ble Division Bench allowed the parties to
participate in the proceedings of the suit and to get the suit disposed of
on merit. Thus this Court is of the view that the suit is to be disposed
of on merit.
39. In view of the above, the order dated 8th July, 2019 is recalled and the
parties are directed to argue the matter on merit.
40. Let, CS No. 90 of 2012 be fixed for argument on 25th August, 2023 at
02:00 P.M.
41. G.A No. 22 of 2019 is thus disposed of.
(Krishna Rao, J.)
