Anil Kumar v. Sunil Kumar And ORS
Patna High Court C.Misc. No.807 of 2016 (2) dt.03-10-2016
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.807 of 2016 ====================================================== Anil Kumar .... .... Appellant/s
Versus
Sunil Kumar & Ors .... .... Respondent/s ====================================================== Appearance :
For the Appellant/s : Mr. Lala Sachindra Kumar For the Respondent/s : Mr.
====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 03-10-2016 Heard learned counsel, Mr. Lalal Schindra Kumar, appearing for the petitioner.
2.
Perused the impugned order dated 23.06.2016 passed by the Sub-Judge-VI, Sitamarhi in Partition Suit No. 128 of 2007, whereby the learned court below has allowed the amendment application.
3.
As has been submitted by the learned counsel for the petitioner, in the suit, issues have not yet been framed, therefore, it is a pre trial amendment. So far the submission of the learned counsel for the petitioner that the same prayer has already been rejected earlier is concerned, it is also admitted fact that the court below rejected the amendment on the ground that the person in whose name the property stands is not a party. Therefore, the present application for amendment has been filed by the plaintiffrespondent for adding the person i.e. Shyama Kumari as party and
Patna High Court C.Misc. No.807 of 2016 (2) dt.03-10-2016 then prayed for partition of the property. Now, therefore, it cannot be said that earlier rejection order will operate as res-judicata. So far the submission of learned counsel for the petitioner that the property belonged to the lady member of the family, who cannot be the coparcener, is concerned, it may be stated that this relates to the merit of the amendment application filed by the petitioner. This question cannot be decided at the time of hearing of the amendment application in view of the decision of Supreme Court reported in 2006 (4) SCC 385 and also 2008 (17) SCC 671. 4.
In view of the above facts and circumstances, I find no reason to interfere with impugned order in exercise of supervisory jurisdiction. Accordingly, this civil miscellaneous application is dismissed.
Brajesh/- (Mungeshwar Sahoo, J) U