Presently, I have heard arguments for deciding Issue No. 5 which was treated as Preliminary Issue and the same is to the following effect :

“Whether the judgments in Suit No. 101/73 and Suit No. 759/80 operate as a bar to the present suit?”

2. At the stage of arguments, the counsel for defendant No. 1 has urged that present suit is barred under the provisions of O. 23(1)(4) of the Code of Civil Procedure in as much as on the same subject matter, the plaintiff had instituted Suit No. 101/73 which he had withdrawn without any permission to file fresh suit on the same subject matter.

3. Facts of the case relevant to the issue in question in brief, are that Plot No. 144, Block No. 171 in Sunder Nagar was obtained on perpetual lease from the President of India by plaintiff and defendant No. 1 in respect of which a Lease Deed was executed and registered on November 7, 1960. The plaintiff and defendant No. 1 have constructed a house on the said plot which now bears Municipal No. 144, Sunder Nagar, New Delhi. It is the case of the plaintiff that plaintiff and defendant No. 1 are the joint owners of the said property having equal share and plaintiff seeks partition of the said property by metes and bounds in order to have his separate share. In this suit, it was pleaded that defendant No. 2 had been inducted by the plaintiff in the first floor of the said house as a Licencee and his licence having been revoked defendant No. 2 is required to vacate the said portion and hand over the same to the plaintiff. It is also pleaded that defendants 1 and 2 are liable to pay mesne profits to the plaintiff and usufruct of entire property is about Rs. 14,000/- per month and the plaintiff has become entitled to a sum of Rs. 2,52,000/- @ Rs. 7,000/- per month from defendants 1 and 2 jointly and severally. Plaintiff also pleaded that the property in question stood mortgaged with defendant No. 3, Punjab National Bank and certain stamped documents have been executed between plaintiff and defendants 1 and 2 which were not intended to be acted upon and were to be used as rear guard action against Punjab National Bank in case Punjab National Bank was to take any steps in respect of theproperty in question. It was pleaded that these documents could be used as a lever for the purpose of settling with the Punjab National Bank and no relief is being sought in the suit against Punjab National Bank but it has been impleaded as a necessary and in any case a proper party in order to effectually and completely adjudicate upon the controversy involved in the present suit.

4. Defendant No. 1, in the written statement, pleaded that in fact oral partition of the property already took place between defendant No. 1 and the plaintiff by which ground floor and the servant quarters fell to the share of defendant No. 1 whereas the plaintiff got the first floor of the property and the plot was kept joint as the plot could not be partitioned in view of the terms of the lease under which the plot was taken from President of India. It was pleaded that plaintiff had instituted earlier two suits which were dismissed and thus, present suit is barred by principle of res judicata. It was pleaded that defendant No. 2 had been inducted by plaintiff as a tenant in his portion of the property. Defendant No. 1 deny that he has mortgaged the property with the Punjab National Bank or had been any party to the execution of any sham documents. In any case, it was asserted that no such particulars of sham documents have been given in the plaint.

5. Defendant No. 2 contested the suit pleading that he had been inducted in the premises as a tenant on the basis of a Lease Deed which was duly registered and he cannot be dispossessed unless the eviction proceedings are brought under the Delhi Rent Control Act and Section 50 of the Act bars the suit against him. He also denied that any sham documents have been executed. Defendant No. 3 filed the written statement controverting that it is necessary or a proper party in this suit for partition. It was pleaded that defendant No. 3 had already obtained a decree for recovery of money against the plaintiff which is in execution. Plaintiff in replication to written statement of defendant No. 1 failed to give any particulars of the alleged sham documents executed but in replication filed to written statement of defendant No. 2, plea was taken that documents set up by the defendant No. 2 were the sham documents and that defendant No. 2 was not inducted as a tenant. It was pleaded that the previous suits were dismissed as withdrawn and they do not operate as any bar to the filing of the present suit.

6. During the pendency of the suit, plaintiff had died and his widow and son and a daughter had been brought on record for the purpose of this suit without prejudice to the plea of the daughter that she alone had inherited the estate of the plaintiff, Jaswant Singh, on the basis of a Will.

7. Defendant No. 1 also died during the pendency of the suit and his legal representative, namely, Satnam Singh Kochhar, has been substituted in his place.

8. The file of the suit No. 101/73 has been perused for deciding the preliminary issue. Jaswant Singh had brought a suit for partition of the same property against Darshan Singh in which it was pleaded in para 4 of plaint that plaintiff had requested defendant by a notice dated February 13, 1973 requiring to partition the property but defendant had set up the plea that the house stood orally partitioned which fact was not correct and thus, cause of action arose for filing the suit for partition seeking partition of the suit property by metes and bounds by separating his 1/2 share of the property. It appears that before even summons could be served on the defendants in the suit, plaintiff moved the application seeking to withdraw the suit unconditionally and the suit was dismissed as withdrawn vide order dated August 3, 1973.

9. The short question which arises for decision is whether withdrawal of the said suit bars the institution of the present suit or not. It is not disputed that cause of action to seeking partition of a joint property is a recurring one and even if one suit is dismissed as withdrawn the second suit seeking partition of the property is not barred. As long as the property is not partitioned effectively, the right of the coowners to file a suit for partition is not lost.

10. Learned counsel for defendant No. 1 has, however, contended that in the suit No. 101/73, it was pleaded by the plaintiff himself in the plaint that the defendant had set up the plea that in fact oral partition of the house in question already had taken place and thus, the claim of the plaintiff for partition is not tenable. It is true he has urged, that plaintiff has denied in the plaint the factum of oral partition but he has argued that the subject-matter of the suit in the said case was the question whether any oral partition had taken place between the parties or not and by withdrawing the suit under O. 23, R. 1, CPC, the plaintiff be deemed to have abandoned the claim that the oral partition of the property had not taken place and thus, he is not estopped from bringing fresh suit for partition in which same subject-matter in which it has to be decided whether oral partition had taken place in respect of the property in question or not. He has argued that in view of O. 23, R. 1(4), the suit is barred having been brought on the same subject-matter.

11. The learned counsel for plaintiff, on the other hand, has contended that the averment made in the earlier plaint that defendant was asserting factum of oral partition was not an essential part of the cause of action for the plaintiff to seek partition of the property. He has vehemently argued that the said averment was not even the flest (sic) but at best was a frill perhaps an unnecessary one and as the subject-matter of the suit was only relief of partition of the house and said cause of action being a recurring one till the partition was effectively carried out, the present suit is not barred under the provisions of O. 23, R. 1(4). It is not necessary to refer to various judgments cited by learned counsel for plaintiff on the legal proposition that the cause of action for bringing a partition suit is a recurring one and as long as the property remains joint, one suit after another could be brought seeking partition of the joint property because this legal proposition is well established and is not challenged by learned counsel for defendant No. 1. However, in the present case, the plaintiff had based his cause of action in the previous suit on the averments that the defendant was setting up oral partition which had not taken place and thus, he sought relief of partition. So, the cause of action in the previous suit not only comprised of the mere fact of the property being joint but also involved a question of fact whether oral partition of the property had, in fact, taken place or not as was being set up by the defendant. So, it cannot be said that plea of the plaintiff in the plaint itself that defendant was setting up the factum of oral partition was an unnecessary plea. If the said suit had been decided on merits after defendants had put in appearance, the question to be decided in the suit would have been whether oral partition had taken place between the parties or not. So, it cannot be said that the subject-matter in the previous suit did not involve the question of existence or non-existence of oral partition of the property in question. In such a case, the withdrawal of the previous suit, in my opinion, resulted in application of provisions of sub-rule (4). It is evident that the question whether oral partition had taken place or not does not furnish any recurring cause of action to the plaintiff.

12. The counsel for plaintiff has cited AIR 1984 NOC 291 (Punj and Har) Ram Sarup v. Sunder wherein the same question came up for consideration. In the said case it was held that if the defendants or some of them pleaded that the plaintiff is not co-sharer or that the property is not of Hindu Undivided Family and belongs to them exclusively and in spite of those pleas, the suit is got dismissed as withdrawn then the subsequent suit for partition would be barred under O. 23, C.P.C because in such a situation there is a dispute between the parties whether the plaintiff is entitled to claim partition.

13. Learned counsel for plaintiff has contended that as no summons had been served on the defendant in the previous suit when it was withdrawn, the provisions of O. 23, R. 1(4) are inapplicable and he has cited Keesari Santamma v. Kanumatha Reddy, AIR 1935 Madras 909.

14.The provisions of O. 23, R. 1(4) clearly become applicable if a suit is withdrawn without leave of the Court for filing Fresh suit on the same subject-matter after the suit is instituted. It does not lay down that if the suit is withdrawn before issuance of the summons to the opposite party or service of the opposite party, then there would be no bar for filing a fresh suit on the same subject-matter. The judgment given in case of Keesari Santamma (AIR 1935 Madras 909) (supra) does not lay down any legal proposition that provisions of aforesaid order would come into play only where summonses have been served on the defendants. Although a doubt was expressed with regard to the interpretation of said O. 23, R. 1 vis-a-vis on this point. It was observed “it is very doubtful whether the prohibition contained in O. 23, R. 1, C.P.C can apply to cases where both the parties are not before the Court.” It is not understood how any doubt can arise regarding interpretation of O. 23, R. 1 as the language used in the said provision is very clear, unambiguous and admits of no two interpretations. It is significant to mention that the Legislature was very much aware whether the legislature wanted to allow the filing of a fresh suit on the same cause of action. In this connection, reference may be made to O. 9, Civil Procedure Code. In that, if the suit is dismissed in default in absence of the plaintiff and the defendant under O. 9, R. 3, C.P.C, it is clearly provided that a fresh suit can be instituted subject to the law of limitation on the same cause of action. No such provision has been made by the Legislature deliberately in O. 23, C.P.C where the suit is withdrawn by the plaintiff without seeking any permission of the Court for filing the fresh suit on the same cause of action. If the interpretation being put to O. 23, R. 1 by the learned counsel for plaintiff is accepted, it would lead to misuse of the process of law. In a case where plaintiff files a suit with an application for grant of ex parte ad interim injunction, and the Court decline to grant any relief of temporary injunction, the plaintiff in that case can easily withdraw the suit and file a fresh one in order to take a chance that fresh suit may be listed before some other Court where he could try his luck again for getting the relief of ex parte injunction plaintiff can repeat such a process again and again. At any rate the language used in O. 23 makes it very clear that if a suit is withdrawn or a claim is abandoned by the plaintiff, the plaintiff is debarred from instituting any subsequent suit on same subject-matter. So, question of defendant being served in the suit or not does not arise for the bar to come into play for filing the subsequent suit once a particular suit has been withdrawn by the plaintiff.

15. Now coming to real issue arising for decision in the present case, “whether the plaintiff has a recurring cause of action for filing the present suit seeking relief of partition. I may refer to Gainda Mal v. Madan Lal, AIR 1948 East Punjab 30.

16. In the present case, the averments made by the plaintiff himself in the previous suit show that a cloud has been thrown on the right of the plaintiff to seek partition in as much as it has been set up by the defendant that oral partition of the property had taken place meaning thereby that property no longer remained joint. The right to seek partition of the property is governed by Art. 113 of the Limitation Act. In Nanak Chand v. Chander Kishore, AIR 1982 Delhi 520, it has been held that the joint ownership turns into possession and enjoyment in common until the physical partition takes place according to the shares standing at the date of severance of status. It is no more in doubt that a suit for such physical partition is governed by Art. 113 and such a suit is to be brought within 3 years from the time when the right to sue accrues. There can be no right to sue until there is an accrual of the right asserted in the suit and its infringement or, at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.

17. The averments made in the plaint in the previous suit clearly show that right of the plaintiff to claim partition was being disclaimed by the defendant by asserting that oral partition had already taken place. The right to obtain relief of partition is a recurring one where admittedly the property remains joint but where a doubt has been caused on the right of the plaintiff to claim partition asserting that property was no longer joint, the plaintiff by withdrawing the suit obviously is now debarred from pleading that property continues to be joint. Hence, I hold that the suit seeking relief of partition is barred under O. 23, R. 1 (4) of the Code of Civil Procedure against defendant No. 1. Issue is decided in favour of defendant No. 1.

18. In view of the decision given above, suit against defendant No. 1 and defendant No. 3 is dismissed. No relief is claimed against defendant No. 3. So, defendant No. 3 is neither a necessary nor a proper party in the present suit.

19. For further proceedings in the suit against the defendant No. 2, be listed in ‘short matters’ on 15th July 1991.

Order accordingly.