Sangeet Lodha, J. - (1.) THIS writ petition is directed against order dt. 17.9.11 passed by the Additional District Judge No. 2, Udaipur in Civil Suit No. 62/11, whereby an application preferred by the petitioner -plaintiff under Sec. 151 C.P.C. seeking directions for auction of the property, a shop, which is subject matter of the suit for partition, stands rejected. The relevant facts are that the petitioner -plaintiff filed a suit for partition of property, a shop, alleged to be in joint ownership and occupation of the petitioner -plaintiff and the respondent -defendant. The suit is being contested by the respondent -defendant taking the stand that the plaintiff has filed the suit only with regard to the disputed shop whereas, there are many more properties which are also required to be partitioned. The respondent -defendant also filed a counter claim and claimed partition of all the joint properties.
(2.) DURING the pendency of the petition, the petitioner -plaintiff filed an application under Sec. 151 C.P.C. stating therein that the joint ownership of the disputed shop is not in dispute and therefore, pending disposal of the suit, the same may be auctioned and the petitioner -plaintiff may be paid 50% of the amount. In the alternative, it was prayed that the respondent -defendant may be directed to pay 50% of the market value of the shop to the petitioner -plaintiff. The application has been rejected by the Court below observing that apart from the disputed shop, the defendant has claimed partition of various other joint properties by way of the counter claim and therefore, the suit for partition has to be decided on the basis of the evidence to be led by the parties wherein in the first instance the preliminary decree shall be passed and only after consideration of the objections to be raised by the parties, the final decree can be passed. The Court observed that there being dispute between the parties in respect of the various properties, at this stage, no order can be passed by the Court for disposal of one property as per desire of one party.
(3.) LEARNED counsel appearing for the petitioner contended that under the provisions of Order XII Rule 6 C.P.C., the Court is empowered to pass an order on the basis of admission of the fact either on the application of any party or of its own motion without waiting for determination of any other question between the parties and therefore, there being no dispute regarding the plaintiff and defendant having equal share in the disputed shop, there is no reason as to why the Court should not pronounce the order in respect of the said property as prayed for.;