Case Note & Summary
The case involves a second appeal filed by the original plaintiffs (appellants) against the dismissal of their suit for partition and separate possession. The suit property was half portion of House No.509 at Sitabuldi, Nagpur. The predecessor of the plaintiffs, Rambhau, had entered into an agreement to purchase the suit property from Tarachand in 1968. Tarachand was a joint owner with his brother Rajaram. When Tarachand failed to execute the sale deed, Rambhau filed a suit for specific performance (R.C.S. No.132/1970), which was decreed in 1971. A sale deed was executed in 1975. However, the property was in possession of a tenant, Premnath. Rambhau filed an ejectment suit (R.C.S. No.132/1976), which was decreed in 1981, but the tenant's appeal succeeded, and Rambhau's second appeal was dismissed on the ground that he had purchased only an undivided half share and could not claim possession of a defined portion without partition. Consequently, Rambhau filed the present suit for partition and separate possession in 1988. The defendant, Madhusudan (son of Rajaram), contended that Tarachand had earlier filed a partition suit (Special Civil Suit No.136/1968) which was dismissed in default in 1970, and restoration was also dismissed, thus barring the subsequent suit under Order 9 Rule 9 CPC. The trial court dismissed the suit, and the first appellate court confirmed that dismissal. The plaintiffs then appealed to the High Court. The High Court framed the substantial question of law: whether dismissal of a suit for partition in default under Order 9 Rule 9 CPC bars a subsequent suit for partition. The Court analyzed the nature of a partition suit, noting that the right to partition is a continuing right and the cause of action is recurring. It held that Order 9 Rule 9 CPC bars only a subsequent suit on the same cause of action, but in partition suits, the cause of action continues as long as the property remains joint. Therefore, the dismissal of the earlier suit in default does not bar the subsequent suit. The Court allowed the appeal, set aside the judgments of the lower courts, and remanded the suit for fresh disposal on merits.
Headnote
A) Civil Procedure - Order 9 Rule 9 CPC - Bar on Subsequent Suit - Partition Suit - The question was whether dismissal of a suit for partition in default under Order 9 Rule 9 CPC bars a subsequent suit for partition. The Court held that a suit for partition is based on a continuing cause of action and the bar under Order 9 Rule 9 applies only when the subsequent suit is on the same cause of action. Since the right to partition continues, the subsequent suit is not barred. (Paras 1-9) B) Civil Procedure - Order 9 Rule 9 CPC - Cause of Action - Continuing Right - The Court reasoned that the right to partition is a continuing right and each day the property remains joint, the cause of action continues. Therefore, dismissal of an earlier suit for partition in default does not extinguish the right to claim partition afresh. (Paras 5-9) C) Civil Procedure - Order 9 Rule 9 CPC - Applicability - The Court distinguished between a suit for possession based on title and a suit for partition, noting that in partition suits, the cause of action is recurring. Hence, the bar under Order 9 Rule 9 is not attracted. (Paras 6-8)
Issue of Consideration
Whether dismissal of suit for partition in default under Order 9 Rule 9 of the Code of Civil Procedure would bar the subsequent suit for partition?
Final Decision
Appeal allowed. The judgments of the trial court and first appellate court are set aside. The suit is remanded to the trial court for fresh disposal on merits in accordance with law. Parties to appear before the trial court on 17-07-2017.
Law Points
- Order 9 Rule 9 CPC
- bar on subsequent suit
- partition suit
- continuing cause of action
- dismissal in default
