Case Note & Summary
The case involves a Regular Second Appeal filed by Revanamma against the judgment and decree of the Senior Civil Judge at Chittapur in O.S. No. 36 of 2014, which was confirmed by the IIIrd Additional District Judge, Kalaburagi in R.A. No. 71 of 2016. The appellant, Revanamma, had instituted a suit seeking partition of certain properties that were left out in a previous partition suit filed by her sister, Shantabai, in O.S. No. 71 of 2011. The trial court rejected the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC), holding that the suit was barred by Order II Rule 2 CPC because the appellant, as a defendant in the earlier suit, had not claimed the suit properties. The appellate court confirmed this decision. In the second appeal, the High Court of Karnataka at Kalaburagi Bench considered whether the bar under Order II Rule 2 CPC applies to a defendant in a partition suit. The Court observed that in a partition suit, the defendants stand in the same position as plaintiffs, but they are not required to claim their share in the suit property. The Court held that the bar under Order II Rule 2 CPC does not apply to defendants in a partition suit, as they are not obliged to include all properties in the earlier suit. Consequently, the rejection of the plaint was set aside, and the suit was remanded to the trial court for disposal in accordance with law. The appeal was allowed with no order as to costs.
Headnote
A) Civil Procedure - Order II Rule 2 CPC - Bar of Subsequent Suit - Partition Suit - The issue was whether a defendant in a partition suit who did not claim a share in the suit property in the earlier suit is barred by Order II Rule 2 CPC from filing a subsequent suit for partition of properties left out. The Court held that in a partition suit, the defendants are not required to claim their share and the bar under Order II Rule 2 CPC does not apply to them. The plaint was wrongly rejected by the trial court and the appeal was allowed. (Paras 1-5)
Issue of Consideration
Whether the bar under Order II Rule 2 of the Code of Civil Procedure, 1908 (CPC) applies to a defendant in a partition suit who did not claim a share in the suit property in the earlier suit.
Final Decision
Appeal allowed. The judgment and decree of the trial court and appellate court are set aside. The suit is remanded to the trial court for disposal in accordance with law. No order as to costs.
Law Points
- Order II Rule 2 CPC does not bar a subsequent suit for partition by a defendant in a previous partition suit
- defendants in partition suit are not required to claim their share in the suit property
- rejection of plaint under Order VII Rule 11 CPC is not warranted when the bar under Order II Rule 2 CPC is not applicable
