SURENDRA SINGH Vs. BIRENDRA PRASAD SINGH

JUDGEMENT

(1.) Heard learned counsel for the parties. Petitioner is defendant of Partition Suit No. 563 of 1993, which was filed by the opposite party for his moiety share in the ancestral properties as both the parties were brothers.

(2.) Petitioner is aggrieved by impugned order dated 12.4.2004 passed in the aforesaid suit by which learned Subordinate Judge- XII, Patna, rejected the petition filed by the defendant (petitioner) under Section 151 of the Code of Civil Procedure (hereinafter referred to as 'the Code' for the sake of brevity) for correction of order dated 23.9.2003 by which learned Court below had held that it had no objection and the defendant is at liberty to withdraw his counter-claim if he thinks that the counterclaim is defective, but the Court is unable to accord any per-mission to file fresh claim for partition or to bring a fresh suit with respect to counter-claim, which in its opinion, will amount to multiplicity of suits and will cast an impediment in the progress of the present suit in such a situation when the evidence on behalf of the plaintiff is going on and, accordingly, petition of the defendant was disposed of.

(3.) From the argument of the learned counsel for the parties and after perusing the materials on record, it is quite apparent that in the said suit petitioner (defendant No. 2) appeared alongwith his mother (defendant No. 1) and both of them filed their written statement setting up a counter-claim of 1/3rd share for each of them and also giving details of the various joint ancestral properties. To this counter-claim, plaintiff (opposite party) filed written statement objecting to the share claimed by defendant No. 1 and also objecting to the inclusion of other properties. It further transpires that subsequently on 2.9.2003 the defendant-petitioner filed a petition under Order XXIII, Rule 3 of the Code to permit the defendant "to withdraw such formally defective counter-claim under Rules 6(A) and 6(3) of Order VIII, with permission to file such subject matter of partition of shares in he immovable properties in accordance to Section 54 read with Rule 3 of Order VII, CPC so as to afford ground to this Court to pass a proper decree in accordance to Rule 18 of Order XX, CPC in such subject matter of partition of shares in the immovable property so sought."