Gosain and Harbans Singh, JJ.:— This is an appeal against the judgment and decree of Shri Gurcharan Singh, Senior Subordinate Judge, Gurgaon, dismissing the plaintiff's suit for possession by partition of certain immovable property and for recovery of mesne profits by rendition of accounts.
2. The plaintiff Manohar Lal brought the suit against his brothers Onkar Das defendant No. 1 and Kidar Nath defendant No. 2 for partition of immovable property mentioned in schedules ‘alif’ and ‘be’ and certain plans attached to the plaint. He also sued for recovery of the amount of mesne profits by rendition of accounts. He impleaded three other persons as defendants on the ground that they were co-sharers in certain portions of the property in which the plaintiff and defendants Nos. 1 and 2 had also a share. The allegations made by the plaintiff were that the property sought to be partitioned belonged to the ancestors of the plaintiff and defendants Nos. 1 and 2 who were all co-sharers in the same in equal shares, that the plaintiff was entitled to one-third of the property in suit, that it had become impossible to keep the property joint, and that the plaintiff was entitled to possession by partition of one-third of the property. The plaintiff also alleged that the defendants had been realising rents and profits of the property ever since the 2nd of January, 1932, i.e, the date of death of Behari Lal, father of the plaintiff and defendants Nos. 1 and 2, and that the defendants were liable to render accounts and pay mesne profits to the plaintiff. The suit was contested by the defendants on various grounds, but for the purposes of this appeal it is not necessary to state all of them in detail. The only two grounds with which we are concerned in this appeal are as follows:—
(1) that the plaint was not correctly valued for purposes of court-fee and jurisdiction; and
(2) that the present suit was barred by reason of the dismissal of the previous suit for the same relief on 21st February, 1947.
3. The learned trial Court fixed the following preliminary issues—
(1) Whether the suit is correctly valued for court-fee and jurisdiction?
(2) Whether the present suit is barred by reason of withdrawal or dismissal under Order 9 rule 8, Civil Procedure Code, of any previous suit between the parties?
(3) Whether the present suit is barred by res judicata or estoppel?
Issue No. 1 was decided in favour of the plaintiff and the decision on the same is not contested in appeal, Issues Nos. 2 and 3 were decided against the plaintiff and his suit was dismissed on the basis of the said decision. Aggrieved against the same the plaintiff has come up to this Court in first appeal.
4. The only point that arises for decision in this case is whether the present suit is barred by reason of the order dated 21st February 1947 passed in the previous case.
5. It appears that the present plaintiff filed a suit somewhere in 1946 for partition of the property now in dispute. The suit came on for hearing on the 6th January 1947 on which date the parties made certain statements in Court which were to the effect that if the plaintiff took a particular type of oath with gangajali in hand in the Ghanteshwar Mandir situate at Rewari and stated that Kidar Nath defendant was not adopted by Kanahaya Lal and that Behari Lal, father of the plaintiff, did not effect any partition of the immovable property in suit in 1886 as per writing produced by the defendants and that the signatures of Kidar Nath on the mortgage deed in favour of Lekh Ram executed by Behari Lal are in his own hand, then the plaintiff's suit may be decreed and each of the parties, that is the plaintiff and defendants Nos. 1 and 2 may be declared to have one-third share in the property in suit and it may be partitioned. It was further provided in those statements that if the plaintiff did not take oath the partition alleged by the defendants should stand and the share kept by Behari Lal for himself and which Smt. Bukhtawari got on his death may be partitioned half and half between the plaintiff and defendant No. 1, and that the suit with respect to the remaining property should stand dismissed. The plaintiff agreed to take the proposed oath on 6th January 1947 but seems to have changed his mind later. The Court trying that suit appointed a local commissioner for the purpose of administering the oath, but the plaintiff refused to take the oath and absented himself. He then made an application in the Court stating that his agreement to take the oath had been made under coercion and undue influence and that he was not prepared to abide by the same. The Court asked him to file an affidavit in support of the said application and fixed the case for this purpose on 21st February 1947. On the said date the plaintiff absented himself and the Court passed an order, copy of which is Exhibit D. 9. By this order the plaintiff's suit with regard to the property situated in Alwar State and the agricultural land situated in Rewari was dismissed on the ground that the plaintiff had given up his suit with regard to the said property. The suit as regards the remaining property was dismissed on the ground that the plaintiff was absent and the defendants did not admit the claim. The aforesaid order was passed by the Court under Order IX, rule 8, Civil Procedure Code.
6. The trial Court found that the order referred to above bars the present suit. The order of the trial Court is somewhat confused, but the operative portion reads as under:—
“Thus the present suit is clearly barred by principal of estoppel by the conduct of the plaintiff and also on account of res judicata.”
Certain portions of the trial Court's order indicate that the Court was under the impression that the plaintiff having refused to take the oath his suit must be deemed to have been dismissed by the order dated 21st February, 1947 and this dismissal operates as res judicata in the present case, but there is no definite finding on the said point. Under section 9 of the Indian Oaths Act any party to any judicial proceedings can make an offer to be bound by an oath or solemn affirmation as is mentioned in section 8 of the Act and the Court is empowered to ask such party whether he would make the oath or affirmation; the Court cannot, however, compel the party to attend personally in Court solely for the purpose of answering such question. Under section 10 of the Act if the party agrees to make an oath or affirmation, the Court may proceed to administer it or may issue a commission to any person to administer it and authorise him to take the evidence of the person to be sworn or affirmed and return it to the Court. Under section 11 of the Act the evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated. Section 12 of the Act provides that if a party or witness refuses to make the oath referred to in section 8, he shall not be compelled to make it, but the Court shall record, as part of the proceedings, the nature of the oath or affirmation proposed, the facts that he was asked whether he would make it, and that he refused it, together with any reason which he may assign for his refusal. There is no provision in the Indian Oaths Act under which a suit can be decided against a party merely because the said party has refused to take the oath which he at one stage accepted to take. It is true that the person offering to take oath cannot withdraw the offer after the same has been accepted, unless, of course he gives adequate reasons for the same and the Court permits him to do so. The person accepting to take the oath is, however, not bound to take the oath and the suit cannot be deemed to have been adjusted merely by the statement that if he took the oath, one result will follow, and if he refused to take the oath, another result will follow. After a Court of law is seized of a suit, such suit must be decided in the manner permitted by law. If the parties go to trial the suit has to be decided on the merits according to the evidence produced by the parties and the responsibility for such decision must in either case rest on the Court. The law, however, allows a number of ways in which a suit can be legally adjusted, e.g, by appointment of an arbitrator, by statement of referee, by a compromise on the merits of the case, by the defendant admitting the claim etc. If the only agreement made by the parties is that a particular decree will be passed if the party took the oath and another decree will be passed if the party did not take the oath, and the party though accepting to take the oath at one time does not take the oath, the agreement cannot be deemed to be an adjustment of the suit on the basis of which a decree can legally be passed. The view taken by me above is supported by a judgment of a learned Single Judge of the Lahore High Court in Shah Nawaz v. Ghulam Mohammad . A.I.R 1946 Lah. 78., and also by a judgment in Sankaran Narayanan v. Kochu Pillai Kochu . A.I.R 1957 Trav.-Cochin 315., and by a judgment in Etakkott Manmod Kutti's Son Moyan v. Etakkott Kuthavi's Daughter Pathukutti . I.L.R 31 Mad. 1..
7. Apart from the above, the Court trying the previous suit did not proceed to enforce the agreement and did not dismiss the suit on the basis of the same. The case had been adjourned to 21st February 1947 when the plaintiff did not appear and the Court proceeded to dismiss the suit in default under the provisions of Order IX rule 8, Civil Procedure Code. There can be no doubt that an order under Older IX rule 8, Civil Procedure Code, cannot amount to res judicata for the simple reason that the suit cannot be deemed to have been heard and finally decided by means of this order. The only effect of an order passed under Order IX rule 8, Civil Procedure Code, is that a fresh suit based on the same cause of action is barred by the provisions of Order IX rule 9, Civil Procedure Code. It has, however, been repeatedly held that a suit for partition dismissed for default under Order IX rule 8, Civil Procedure Code, does not bar a subsequent suit for partition. The reason is that the right to enforce a partition is a continuous right which is a legal incident of a joint tenancy and which enures so long as the joint tenancy continues: See in this connection Bisheshar Das v. Ram Prasad . I.L.R 28 All. 627., Madhura Gramani v. Thumala Sesha Reddy . I.L.R 49 Mad. 939. and Thayyan v. Kannikandath Kizhe Purakkal . A.I.R 1935 Mad. 458.. The learned counsel for the respondents contended that his clients having denied the joint status of the parties in the previous suit it must be deemed that the joint status came to an end. We are afraid we cannot accept such a curious contention. The plaintiff alleged in the previous suit that the property was joint and relies on the same joint tenancy in the present suit. He will obviously be entitled to a decree for partition if it is found that the property claimed to be joint by him is actually joint and the suit will obviously fail if it is proved that this allegation made by him is untrue. For the purposes of deciding this issue it has to be assumed that the plaintiff's suit is for partition of a certain joint property which was joint at the time of the previous suit and continues to be joint up till now. The plaintiff in the previous case applied for restoration of his suit but his application was dismissed on the ground that he had failed to establish sufficient cause for his non-appearance in Court. In First Appeal from Order No. 2 of 1949 the order of the trial Court refusing to restore the suit was affirmed by Soni, J. on 7th October, 1949. This, however, does not affect the decision in the present case, as for all intents and purposes, it is being assumed that the previous suit was dismissed in default under the provisions of Order IX rule 8, Civil Procedure Code. The present suit being for partition of the property cannot be deemed to be barred by the provisions of Order IX, rule 9, Civil Procedure Code, for the reasons given above. The previous order dated 21st February 1947 cannot bar the present suit either on the ground of res judicata or on the ground of estoppel and the finding of the trial Court on issue No. 2 is obviously erroneous so far as the claim of partition is concerned.
8. So far as the claim for mesne profits is concerned, there is nothing on the record to show whether such a claim was made in the previous suit, and pointed attention of the parties has not been drawn on the point whether the suit for mesne profits for a period previous to the 21st February 1947 is entertainable or not. If the defendants contend that the suit for mesne profits for a period prior to 21st February 1947 is barred under the provisions of Order IX rule 9, Civil Procedure Code, the said contention will be decided by the trial Court after giving opportunity to the parties to lead evidence and address arguments for and against the same. The decree of the trial Court dismissing the suit is set aside and the suit is remanded to the trial Court for fresh decision according to law.
9. Costs will abide the final event.
10. Parties are directed to appear in the trial Court on 31st December 1958.
Order accordingly.