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Judgment
The department has pointed out that the appeal has been filed after a delay of about 100 days or so. A supplementary affidavit has been called for from the appellant and such affidavit reveals that an application for correction of the decree was filed and the decree was corrected some four months and nine days after the application was filed.
In such view of the matter, the marginal delay, if at all, in preferring the appeal is condoned. It is, however, observed that there may not have been any delay at all attributable to the appellant in preferring the appeal.
The appeal arises out of an order dismissing a partition suit. The appellant was the first defendant in such suit and had lodged a counterclaim therein. The respondents have been served and the plaintiff is represented. The plaintiff has not carried any independent appeal from the judgment and decree impugned.
The trial court has found that the action was not complete in the sense that not all the joint properties had been made a part of the partition suit between members of the family or their transferees. The trial court also found that some of the members of the family or joint holders of some of the properties had not been impleaded.
Even though the plaintiff has not assailed the decree, since it is a partition suit and every party therein is equally interested in such proceedings, the first defendant-appellant has equal right to espouse the cause of partition in this appeal or the counterclaim which was dismissed on similar grounds. As far as the absence of necessary parties is concerned, the appellant is justified in the submission that the suit should not have been dismissed on such ground and the parties could have been given leave to implead the other joint holders of some of the properties.
However, as far as the ambit of the action is concerned, it appears that some of the joint properties were left out from the schedule of properties included in the plaint and the court came to a conclusion that there were other properties whereat the family members or their transferees were joint holders but which properties had not been made the subject matter of the suit. Since such part of the judgment impugned appears to be accepted by both the appellant and the appearing plaintiff-respondent, the trial court cannot be faulted for not entertaining an incomplete action which will not bring to an end the matters complained of or the bickering between the parties.
Accordingly, FA 4 of 2018 and CAN 7198 of 2017 are disposed of by leaving the parties herein free to institute a fresh suit for partition upon incorporating therein all the joint properties and impleading all shareholders of such joint properties.
It will be open to the appellant or to any of the respondents to institute such suit where the incompleteness of the present action as pointed out in the judgment impugned should not be repeated.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.