LexR. RAMAMURTHI IYER versus RAJA V. RAJESWARA RAO
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904 R. RAMAMURTill IYER v. RAJA V. RAJESWARA RAO August 22, 1972 [A. N. GROVER AND D. G. PALEKAR, JJ.] B Partition Act •· 2 &: 3-Code of Civil Procedure O. 23 R. 1-Plain- tiO In suit for partition applying to court for sale o/property-De/endant 11greelng 1to buy at valu«tion ·made under direction of Cow·t-P/alntiD whither can withdraw suit and have liberty to file fresh suit. In a suit for partition of property between two joint owners the plainllif made an application to the Court under 1. 2 of the l>artltion Act that as one of the properties namely, a cinema house with its appurten- C anc:ca, was incapable of division by metes and bounds, the same be aold and the proceeds divided between tbe parties. The defendant contend- ed that it was possible to divide the propertv by metes and bounds but offered, if the Court took tlje contrary view, to purchase it at a valui:.tion made by the Court, under the provisions of s. 3 of the Act. The Court app:)ioted. a Commissioner whose report showed that be bad consider- able difficulty in suggesting a division. The Single .Judge had given no final decision_ on the matter when an oral application was made by the D plaintiff for withdrawing the suit with liberty to institute a fresh 1ui1. The Judge held !bat the suit could be withdrawn because. no preliminary decree had been passed and that a fresh suit could be brouaht under the provi•ions of Order Z3 Rule I of the Code of Civil Procedure. The suit was dismissed as wiihdrawn. In appeal the Division Bench held that the defendant bad a vested right to purchase the property and re•"ersed the judgment of !be trial Court In this Court it was ur&e<I on behalf of the plaintiff's legal representatives that under Order 23 E Rule I there was an unqualifieJ right to withdraw a suit except that in certain limited circumstances where the defendant had acquired a vested interest, the Court was not bound to allow withdrawal. Dismissir.g the appeal, HELD : The true position under ss. 2 and 3 of !he Partition Act ao far as 0. 23, r. I C.P.C. is concerned must be determined in the light of F the rule enunciated by Crump, J., in Tukarama's case as that rule has seldom been doubted and there is a large body of judicial opinion to support it. It was observed by Crump J. that on wider cousiderations it mnot be held that plaintiff could not withdraw so as to defeat the defendant's claim. He further pointed out that in a partition snit a def en· dant oeeking a share is in the position of a plaintiff and one plaintiff can- not withdrnw without the permission of another. [914B, DJ Under ss. 2 and 3 of the Partition Act, the various stages in the G proceedings would be as follows : 1. In a snit for partition if, it appears to the Court that for the reasons. stated in s. · 2 a ·division of the property cannot reaaonably and · ¢onveniently be made and that a sale of .property .would be more bene- fidal it <:an direct sale.· This can be done, however, only on the request of the shareholders interested individually or collectively to the extent H of one moiety pr upwards. (2) When a request is made under •-. 2 to the court to direct a .ale any other shareholder can apply under a. 3 for leave to buy at a valuation the share of the other party asking for a sale. (3) The court has to order valuation of the share of the partv A I c D E F G B R. R. IYER v. R, v. RAO (Grover; I.) 905 asking for sale. ( 4) After the valuation has been made the court has to olfer to •ell the share of the party asking for sale to the shareholder applying for leave to buy tmder s. 3. (5) H two or more shareholders severally .apply for leave to buy the court is bound to order a •ale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the court. (6) If no shareholder is willing to buy such share or shares at the price so ascertained the application under s. 3 shall be dismissed, the applicant being liable to pay all the costs. [914E-915A] & sOQn as a shareholder applies for leave to buy ~t a valuation· the at.are of the party asking for ;i, sal~ under s. 3 of the Partition Act he obtains an advantage in that the court is bound thereafter to order a valuation and · after getting the same done to offer to sell the same to such shareholder ~t the valuation so made. This advantage, which may or may not fulfil the juridical meaning of a right, is neverth
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