Court cannot dismiss a final decree application as infructuous when prior procedural requirements allow consideration; all related applications must be heard together.

JUDGMENT

This original petition has been filed against the dismissal of the final decree application filed by the petitioner as infructuous. A suit for partition was filed in the year 1980. Initially, a preliminary decree was passed in 1982. The said preliminary decree was later corrected in 2002. An appeal was filed challenging the preliminary decree. The appeal was dismissed in 2007. The plaintiffs 6 and 7 filed a final decree application in 2006. The petitioner had purchased the shares of all other sharers other than plaintiffs 6 and 7. He was impleaded as additional 8^th defendant in the suit in 2008. Since the 8^th defendant had not filed any final decree application, a final decree was passed with respect to the shares of plaintiffs 6 and 7 in 2009. The plaintiffs 6 and 7 challenged the final decree in an appeal before the District Court. The petitioner also filed a final decree application in 2011. The final decree application filed by the petitioner was dismissed by Ext.P8 order. The reason stated was that an appeal was pending against the final decree, which has been passed and that there was no preliminary decree in favour of the additional 8^th defendant. The petitioner filed a civil revision petition before this Court which culminated in Ext.P9 judgment. In Ext.P9, this Court set aside the order of the court below and directed the trial court to restore I.A.No.2256 of 2011 and proceed in accordance with law. This Court also directed to take steps for expediting the disposal of A.S.No.93 of 2010, which had been filed by the plaintiffs 6 and7 against the final decree which is passed in their favour. The appeal filed by the defendants 6 and 7 was disposed of as per Ext.P6 judgment on 23.03.2019. The Appellate Court set aside the Commission reports Exts.C2 and C2(a) based on which the final decree had been passed and directed the trial court to pass a fresh final decree after calling for a fresh report. The matter is still pending at that stage. In the meanwhile, by Ext.P14 order dated 25.11.2023, the trial court dismissed the application filed by the petitioner for final decree, stating that it has become infructuous since Exts. C2(a) plan and C2 Commission report had been set aside. It is the said order that is challenged.

2. On going through the proceedings, it is seen that the application for final decree was filed by the petitioner in 2011 much before the Appellate Court had considered the appeal filed by the plaintiffs 6 and 7. At that stage what was available before the court was Exts.C2(a) plan and C2 Commission report and the petitioner could not have made an application otherwise than in accordance with the said report. All that the court below had to do in view of the judgment of this Court in the CRP and the judgment in A.S.71/2018 (earlier numbered as A.S.No.93 of 2010) was to pass orders on the final decree applications filed by the petitioner and the plaintiffs 6 and 7 by considering them together, after calling for a report from the Commissioner with regard to the allotment in line with the directions issued by the Appellate Court. There was no necessity to dismiss the application as infructuous.

In the above circumstances, the original petition is allowed. The court below is directed to take back I.A.No.2256 of 2011 on file and pass a final decree after considering the contentions of the petitioner and the plaintiffs 6 and 7 and after calling for a fresh report from the Advocate Commissioner appointed for making the division, if no report is as at present available. The parties shall appear before the court below on 26.03.2026. Since the suit is of the year 1980, all efforts shall be done to complete the process and pass the final decree at the earliest, at any rate, within three months from the date of receipt of a copy of this judgment.

Sd/-