Surender Kumar Gupta Thr Manju Gupta v. Mahender Kumar Gupta

V.B.GUPTA, J. ab

* HIGH COURT OF DELHI: NEW DELHI CM (M) No. 1275/2010 & CM No. 18189/2010 % Judgment reserved on: 06th October, 2010 Judgment delivered on: 26th October, 2010 Sh. Surender Kumar Gupta, (Through Dr. Manju Gupta) Daughter & Attorney of Petitioner, S/o Bhagwan Dass Vaish, R/o 11, Birbal Road, Jangpura Extension, New Delhi-110014. ….Petitioner. Through: Dr. Manju Gupta, Attorney of petitioner. Versus Sh. Mahender Kumar Gupta, S/o Bhagwan Dass Vaish, R/o 11, Birbal, Road, Jangpura Extension, New Delhi-110014. ….Respondent Through: Nemo. CORAM: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? No 3. Whether the judgment should be reported in the Digest? No V.B.Gupta, J. By way of present petition under Article 227 of the constitution of India filed by the petitioner, there is challenge to order dated 21st August, 2010 passed by Civil Judge, vide which application under Section 3 of Indian Partition Act, 1893 (for short as "Act") for grant of pre-emptive right to petitioner to buy the share of the respondent, was dismissed. 2. Brief facts as emerges from the record are that, petitioner filed a suit for partition in the year 1982. That suit was decreed and a preliminary decree was passed on 22nd December, 2003, whereas final decree was passed on 17th May, 2004. 3. Petitioner filed appeal against the final judgment and decree, wherein non-disposal of the objections filed by him to the report of Local Commissioner was taken. First Appellate Court, vide its judgment dated 13th December, 2006 observed as under: "From the said statements, it is clear that neither of the parties ever requested to sell the property. They merely stated that the matter could not be settled amicably, hence requested to pass the final decree. As both the parties had allegedly filed the objection to the report of Local Commissioner, hence ld. Trial Court should decide the objections at least at the time of passing of final decree. In this case there was two contrary reports as one architect opined that property cannot be partitioned while another opined that it can be partitioned by the simply raising the wall." 4. Accordingly, final decree was set aside and matter was remanded back to the trial Court with directions to decide the objections filed by the parties to the report of Local Commissioner. 5. Trial court, after hearing arguments on the objections of the Local Commissioner"s report, ordered for the appointment of a new Local Commissioner. Petitioner thereafter, filed an application under Section 151 of the Code of Civil Procedure (for short as "Code") objecting to the suggestion for appointment of another Local Commissioner. Petitioner also filed an application under Section 3 of the Act, for grant of pre-emptive right to buy the share of respondent. Vide impugned order, application of petitioner under Section 3 of the Act, was dismissed. 6. It is contended by the attorney of the petitioner that trial court has not analyzed the contentions made by the parties in application under Section 3 of the Act. The trial court, allowed the respondent to resile from his earlier stand that suit property is not partitionable as evident from respondent"s reply to the objections to the Local Commissioner"s report, dated 26th August, 2004 wherein respondent has supported all the findings of the Local Commissioner. 7. It is further contended that as per the Act, if a shareholder in a suit for partition has invoked the power of the Court to order sale, instead of division, in a partition suit under Section 2 of the Act and other share-holder undertakes to buy at a valuation the share of the party asking for sale, then the court has no option or choice or discretion left to it and it is bound to order a valuation of the share in question and order to sell the same to the share holder undertaking or applying to buy it at a valuation. In the present suit, respondent has prayed