JOSE Vs. CHAKKU

JUDGEMENT

(1.) Petitioners are two among the contesting respondents in a Suit for Partition which is now pending in final decree proceedings. After passing of the preliminary decree the respondent/ plaintiff moved two applications, one for amending the plaint and the other for amending the preliminary decree. Some mistakes have crept in the description over some of the items of suit properties with respect to their extent, survey number etc. was his case to seek amendments as indicated above. However, such applications were moved at a time after the preliminary decree was confirmed in an appeal by this court. Objections raised by the petitioners that the decree passed by the trial court having merged with the decree of appellate court the application for amendment could not be entertained by that court found approval with the learned Sub Judge which resulted in dismissing both applications. Common order passed by the learned Sub Judge in the two' applications was challenged by the plaintiff before this court in two revisions which were disposed by Ext. P-8 order. Operative portion of Ext. P-8 order reads as follows:

(2.) Though the counsel on both sides concede that there is a factual error in Ext. P-8 order passed by this court inasmuch as stating that one among the applications was for appointment of a receiver which, in fact, was for amendment of the preliminary decree passed by the court and confirmed in appeal that appears to be not of much significance since a specific direction as seen from Ext P-8 order, has been given only in respect of the application moved for amendment of the plaint. If such amendment is allowed the defendants have to be given an opportunity to file written statement and, then, the court has to take a decision whether the relief sought for could be granted is the purport of the decision rendered in Ext. P-8 order. All parties to the suit are bound by Ext. P-8 order. Though the learned counsel for the petitioners contended that amendment canvassed for could not be entertained placing reliance on some judicial pronouncements rendered by this court so far as the parties to the suit are concerned, they are bound by Ext. P-8 order. Even otherwise, in case where there was any omission for inclusion of one or other items of joint property in the suit before passing of preliminary decree or non-allotment of a share to a party which he or she is entitled to, nothing prevents the court in entertaining application thereof and passing appropriate orders on its merit. A preliminary decree has been passed is no bar for passing further preliminary decree in the case till passing of final decree, if the situation demands so. So, in the present case, where the petitioners have got a case that there is some misdescription over some of the items of properties already included in the suit as joint properties under Ext. A-4 for division with respect to its extent, survey number and boundaries, the amendment sought for has to be considered on its merits. A preliminary decree has already been passed, the defendants have set up a plea of adverse possession over the properties, and, even contended that the proposed amended schedule of properties are not joint properties, are not sufficient to disallow the amendment, especially in view of the previous order of this court. Whatever contentions available to defendants can be raised by them after amendment filing additional written statement, and such contentions if raised have to be decided on the materials placed before the court. I am not expressing any opinion over the contentions raised by defendants opposing the amendment application of the plaintiffs especially, in view of the observations made in Ext. P-8 order previously rendered by this court. However, the amendment of the preliminary decree already passed, as sought for by the plaintiff, at this stage, cannot be allowed. The question whether a separate preliminary decree has to be passed or amendment of the preliminary decree already passed is permissible has to be decided after resolving the issue whether the properties after amendment is joint or otherwise and also partible. Probably, the preliminary decree passed having merged with the appellate decree, in a case of this nature, a fresh preliminary decree may be essential, if it is so found which the court below has to consider.

(3.) Ext. P-9 order allowing the amendment of the preliminary decree shall stand vacated subject to the observations made above. The court below is directed to take further steps consequent to the amendment allowed to the plaint over the description of some items of properties, taking note of the observation of this court in Ext. P-8 order and also this judgment and in accordance with law. Learned counsel for petitioners submits that if earnest efforts of mediation are made, there is a fair chance of settlement. His party is not adverse to mediation or for settlement, is the submission of the counsel for respondents. So much so, the court below, before proceeding further in the matter, shall give the parties an opportunity for settlement referring the matter to mediation. If the steps taken for the mediation fail, then, the court has to adjudicate the disputes and dispose the case in accordance with law.