DEVENDRA RAI Vs. MEGHA RAI

JUDGEMENT

(1.) THIS Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) is directed against the order passed by the trial court in a pending Partition Suit on 14.7.2004, whereby, a permission was granted for sale of the share of original defendants 1 to 5 in one of the five plots being subject matter of the Partition Suit merely accepting the submission of learned counsel for the defendants that the defendants are unable to defend the litigation of partition initiated by their brother.

(2.) ORDINARILY , when a lis is pending and the litigation is on, moreso in a Suit for Partition, the court will refrain from giving permission to sell the property. In factual scenario it is one dispute whereas there are several disputes based on investigation of facts. The only ground on which the submission was raised at the time of hearing, as it transpires from the impugned order of the trial court, is that the original defendants, opposite parties herein, were unable to defend the Suit by procuring the services of a private lawyer for want of funds. This cannot be said to be an exceptional ground permitting for sale of property permanently. There is now provision for providing free and competent legal services to a needy deserving person under the provisions of Legal Services Authorities Act, 1987. Apart from the powers of the court for appointment of a lawyer for the purpose of ascertaining the truth as an Amicus Curiae in a given case, in all probabilities, conclusions will entail depending upon the outcome of the Suit for Partition and in all probabilities the facts leading to multiplicity of litigation. In absence of any special reason or any exceptional ground the exercise of discretion by the trial court in passing the impugned order whereby a permission has been granted to some of the co -sharers of the suit for permanent disposal cannot be sustained.