The court emphasized that even if a wrong provision of law is cited, if the relief sought is permissible based on the established facts and circumstances, the court is not debarred from passing any appropriate order.

ORDER:

This civil revision petition is filed under Article 227 of the Constitution of India, against the order dated 08.11.2021 rejecting the unnumbered petition in C.F. No.1972 of 2021 in O.S. No.124 of 2018 on the file of the Court of the Principal District Judge, Nellore, SPSR Nellore District, filed under Section 151 of the Code of Civil Procedure, 1908 (‘CPC’) to pass the revised or additional preliminary decree by way of amendment of preliminary decree dated 17.03.2020 in the suit by allotting half share to the petitioner/plaintiff and half share to the 2nd respondent/2nd defendant out of the plaint-A schedule property and to put the petitioner/plaintiff in possession of such half share allotted to her and to put the 2nd respondent/2nd defendant in possession of his half share allotted to him out of the plaint-A schedule property.

2. The parties will hereinafter be referred to as they were arrayed in the petition.

2. The facts leading to file this revision petition are that, in a suit filed by the petitioner/plaintiff for partition, a preliminary decree was passed on 17.03.2020 directing the division of plaint schedule property into three equal shares by metes and bounds by allotting one such share each to the defendants 1 and 2 and further directing the defendants to pay the plaintiff a sum of Rs.25,312/- as suit costs. After passing the preliminary decree and before passing the final decree, the 1st respondent/1st defendant died on 11.06.2020.

3. The petitioner/plaintiff contends that the 1st respondent/1st defendant died leaving the petitioner/plaintiff and the 2nd respondent/2nd defendant as his legal heirs and except them there is no other legal heir, as the 1st respondent/1st defendant died issue less and his wife predeceased him. Initially, the petition filed by the petitioner/plaintiff seeking an additional preliminary decree or an amendment to the preliminary decree was returned on 31.03.2021 with the objection “lack of/proof of L.Rs. of the 1st respondent to be filed”. After the petitioner resubmitted the petition answering the objection that the 1st respondent/1st defendant died intestate on 11.06.2020 leaving the petitioner/plaintiff and the 2nd respondent/2nd defendant as his sole legal heirs, as his wife Anumalasetty Lakshmi pre-deceased him issueless on 17.09.2018. However, on 08.11.2021 the trial court rejected the petition with the following observations:

“Affidavit averments itself reveals that there cannot be any dispute on the question of passing preliminary decree dated 17.03.2020 and 1st defendant died on 11.06.2020. Petitioner herein intends to seek relief of revised or additional preliminary decree by way of amendment to the preliminary decree even without showing the provision/rule how the petition is maintainable to revise or an additional preliminary decree by way of amendment to an undisputed preliminary decree dated 17.03.20202 based on subsequent event. Hence the petition is not maintainable to number. Hence rejected”

4. Having aggrieved by the same, the revision petition is preferred contending that the trial court ought to have seen that after passing preliminary decree, the 1st respondent/1st defendant died and final decree proceedings are pending and that except the petitioner/plaintiff and the 2nd respondent/2nd defendant, there are no heirs left by him and further contended that the trial court ought to have registered the application after considering the objections, if any, and that the application ought not to have rejected at the threshold.

5. During hearing, the learned counsel for the petitioner/plaintiff submitted that the court is not precluded from passing any number of preliminary decrees before passing the final decree and that in view of the circumstances stated by the petitioner/plaintiff, the trial court committed an error in rejecting the petition on the ground that no provision has been cited. Learned counsel placed reliance on the judgment of the Apex Court in a case between