Recently, the division bench of the Supreme Court comprising, Justices M.M. Sundresh and Prashant Kumar Mishra, observe that in suit for partition, each individual party is considered to be a plaintiff. Further, the Court observe that, the law does not prohibit passing of numerous preliminary decrees.
“Admittedly, we are dealing with a suit for partition, in which every interested party is deemed to be a plaintiff. Law does not bar passing of numerous preliminary decrees.”
When adjudicating an issue related to the application of Section 10 (stay of suit) of the Code of Civil Procedure (CPC) in a partition suit, the situation arises where a preliminary decree is being sought while a trial in a similar case is already pending. In such a scenario, the court needs to consider whether it should stay or halt the proceedings in the current partition suit based on the principles outlined in Section 10 of the CPC.
Section 10 of the CPC deals with the principle of res judicata, which means that once a matter has been decided by a competent court, it cannot be re-agitated between the same parties.
The current Special Leave Petition (SLP) has been filed to challenge the judgment issued by the Kerala High Court. The High Court's decision upheld the supplementary preliminary decree that had been granted in favor of the appellant's sisters, who are identified as respondents No. 1 and 2 in the case.
Case Brief -
A partition suit was initially filed as O.S. No.205/1994, where the petitioner/appellant was named as a defendant. The preliminary decree passed in the said suit became final as against the petitioner herein. However, it's important to note that two of his sisters were not initially included as parties to the suit. These sisters made an attempt to become parties to the proceedings at a later stage, specifically during the final hearing, but their efforts did not result in success.\
Subsequently, the two sisters who were not initially parties to the original partition suit (O.S. No.205/1994) filed a separate and independent suit in O.S. No.47/2014, seeking a partition of the property. While this new suit was still ongoing, they also filed an application in the original suit (O.S. No.205/1994) seeking yet another preliminary decree against the petitioner. As a result of their application, a supplementary preliminary decree was issued in the original suit. This supplementary preliminary decree has now been confirmed by the impugned order.
In response to this confirmation, the present Special Leave Petition (SLP) has been filed, challenging the validity of the supplementary preliminary decree and the order confirming it.
After examining impugned order and the preliminary decree passed by the Trial Court, the Apex Court observe that Order XLI, Rule 31 of the CPC has been complied, inasmuch as adequate reasoning has been rendered by the High Court. It went on to hold that that the High Court has considered the contentions on merit and, therefore, dealt with the issues involved.
“The fact that the applicants are the sisters of the petitioner is not in dispute. In such view of the matter, they ought to have been arrayed as defendants in the main suit itself. The dismissal of the application during the final hearing proceeding has got no bearing on the application filed seeking yet another preliminary decree. Both the Courts had rightly disbelieved the unregistered wills executed in favour of the petitioner ignoring the two daughters.”
In view of the same, the Court dismissed this SLP.
Case Title: A. KRISHNA SHENOY v. GANGA DEVI G. & ORS, Petition(s) for Special Leave to Appeal (C) No(s). 8080/2019
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