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Asha Sharma And Others v. Amar Nath And Others
Factual and Procedural Background
Prabha Ram, Sant Ram, Relu Ram, and Brahm Dass were sons of Lakhoo Ram. In November 1981, Sant Ram and Prabha Ram filed a suit for partition and separate possession of a three-storeyed building located at Lower Bazar, Solan, claiming each a ¼th share, with the defendants Relu Ram and legal heirs of Brahm Dass also holding ¼th shares each. The suit was resisted by the defendants but was dismissed in default on 2nd July 1984 under Order 9, Rule 8 of the Code of Civil Procedure. An application for restoration filed by the plaintiffs was withdrawn and dismissed on 19th June 1985.
Subsequently, on 21st September 1985, the plaintiffs filed another suit for partition on similar grounds against the legal heirs of Relu Ram and Brahm Dass. The suit was resisted and an objection was raised that it was barred by res judicata due to the earlier suit and dismissal of the restoration application. The trial court held that the suit was not barred by res judicata or Order 9, Rule 9 of the Code, reasoning that the cause of action for partition is recurring. On merits, the suit was dismissed for failure to prove joint ownership to the extent claimed.
The plaintiffs appealed, and the Additional District Judge allowed the appeal on 24th June 1994, holding that the appellants were co-owners entitled to partition. The property was ordered to be sold by public auction with proceeds divided equally.
The defendants then approached the High Court in a Regular Second Appeal, which was admitted on 8th November 1994.
Legal Issues Presented
- Whether the suit is barred by the principle of res judicata?
- Whether the learned lower appellate Court erred in law in accepting the additional evidence?
- Whether a second suit for partition is precluded under Order 9, Rule 9 of the Code of Civil Procedure where an earlier suit for partition was dismissed in default under Order 9, Rule 8 of the Code of Civil Procedure?
Arguments of the Parties
Appellants' Arguments
- Argued that even if the cause of action in a partition suit is recurring, the plaintiff must show that something occurred between the dismissal of the first suit and the filing of the second which gave rise to a fresh cause of action.
- Relied on the definition of "recurring" from the Law of Lexicon by Justice M.C. Desai to support their position.
- Referred to precedents such as Bengal Waterproof Limited v. Bombay Waterproof Manufacturing Company, K.S Sundararaju Chettiar v. M.R Ramachandra Naidu, and N.R Narayan Swamy v. B. Francis Jagan to support their contentions.
Respondents' Arguments
- Contended that the cause of action in partition suits is continuous and recurring, and therefore a second suit is not barred under Order 9, Rule 9 of the Code.
- Relied on precedents including Sadhu Singh v. Kaur Singh and Ranjit Singh v. Gurnam Singh which reaffirmed the continuous right of joint tenants to enforce partition.
- Argued that the principle of res judicata does not apply since the first suit was dismissed in default and not finally adjudicated on merits.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nasarat-Ullah v. Mujib-ullah, (1891) ILR 13, All 309 | Right to enforce partition is continuous as long as joint tenancy subsists. | Supported the principle that partition rights persist despite dismissal of earlier suits. |
| Bisheshar Das v. Ram Prasad, 1906 ILR 28 All 627 | Right to partition continues despite dismissal of suit in default. | Reiterated that second suits for partition are not barred by default dismissal of earlier suits. |
| Madhura Gramani v. Thumala Sesha Reddy, (1926) ILR 49 Mad 929; AIR 1926 Madras 1018 | Partition suit dismissed in default does not bar subsequent suits. | Confirmed that the right to partition accrues from time to time and is not extinguished by prior default dismissal. |
| Mukha Singh v. Ramchariter Singh, AIR 1956 Patna 143 | Cause of action in partition suits is recurring and continuous. | Held that second suit for partition is not barred by Order 9, Rule 9. |
| Manohar Lal Behari Lal v. Onkar Das alias Omkar Dass, AIR 1959 Punjab 252 | Order 9, Rule 9 does not bar subsequent partition suits after default dismissal. | Emphasized continuous right of joint tenants to seek partition. |
| Sadhu Singh v. Kaur Singh, 1992 (1) Rec Civ R 444 (Punj & Har) | Right to enforce partition is a legal incident of joint tenancy and continuous. | Supported the view that second suits for partition are maintainable. |
| Ranjit Singh v. Gurnam Singh, 1998 (4) Rec Civ R 528; 1999 AIHC 989 (Punj & Har) | Second suit not barred when cause of action is continuous. | Applied to uphold maintainability of subsequent partition suit. |
Court's Reasoning and Analysis
The Court analyzed whether the second suit for partition was barred by Order 9, Rule 9 of the Code of Civil Procedure following the dismissal of the first suit in default under Order 9, Rule 8. It observed that an order under Rule 8 does not amount to a final adjudication on merits and thus does not attract the principle of res judicata. The bar under Rule 9 applies only when the cause of action is identical in substance and the first suit was dismissed after hearing on merits.
The Court emphasized that the right to enforce partition is a continuous legal incident of joint tenancy, which subsists as long as the joint tenancy exists. Consequently, the cause of action in partition suits is recurring or continuous, allowing a party to file successive suits for partition until actual partition is effected.
The Court rejected the appellants' argument that "recurring" requires a fresh event between suits, holding that the continuous nature of joint ownership inherently provides a recurring cause of action for partition. It also noted that the lower appellate Court rightly permitted additional evidence with the consent of the defendants, and this procedural aspect was not subject to challenge.
In light of binding precedents from various High Courts and the principle of continuous right to partition, the Court concluded that the second suit was not barred by Order 9, Rule 9.
Holding and Implications
The appeal is dismissed.
The Court held that a second suit for partition is not precluded under Order 9, Rule 9 of the Code of Civil Procedure where the earlier suit was dismissed in default under Order 9, Rule 8. The continuous and recurring nature of the cause of action in partition suits allows a party to file successive suits until partition is effected. The decision directly affects the parties by upholding the maintainability of the second suit but does not establish any new precedent beyond reaffirming existing legal principles.
1. The substantial question of law which calls for answer is:
“Whether second suit for partition is precluded under Order 9, Rule 9 of the Code of Civil Procedure where an earlier suit for partition was dismissed in default under Order 9, Rule 8 of the Code of Civil Procedure?
2. In order to appreciate controversy, few facts may be noticed:
3. Prabha Ram, Sant Ram, Relu Ram and Brahm Dass were sons of one Lakhoo Ram. In November, 1981 Sant Ram and Prabha Ram laid a suit before the trial Court for partition and separate possession of a three-storeyed building situate in Khasra No. 264 at Lower Bazar, Solan, in the District Solan, claiming that plaintiffs Sant Ram and Prabha Ram had 1/4th share each and the defendants Relu Ram and legal heirs of Braham Dass the defendants, had also ¼th share each in this property. The plaintiffs wanted to separate and wanted that property should be partitioned. This suit was resisted by the defendants. However, the suit was dismissed in default on 2nd July 1984 under Order 9, Rule 8 of the Code of Civil Procedure. It appears that an application for restoration of the suit was filed by the plaintiffs on 7th July, 1984. This application was withdrawn and dismissed, as such, on 19th June, 1985.
4. Plaintiffs, respondents herein, filed another suit for partition of the property in dispute on 21st September, 1985 on the similar grounds against the legal heirs of Relu Ram and Braham Dass, hereinafter referred to as ‘the defendants’, claiming that the plaintiffs were the owners in possession to the extent of ¼th share each and legal heirs of Braham Dass and Relu Ram also to the extent of ¼th share respectively.
5. The suit was resisted. Allegations were controverted. An objection was taken that suit was not maintainable in view of the principle of res judicata as an earlier suit filed by the plaintiffs for partition was dismissed after settlement of the issues and the application for the restoration of that suit too was dismissed. Learned trial Judge under Issue No. 3 held that the suit was not barred by the principle of res judicata as well under Order 9, Rule 9 of the Code of Civil Procedure as cause of action for a suit for partition is “recurring one”, therefore, provisions of Order 9, Rule 9 of the Code of Civil Procedure would not apply in the case. On merits it was held that plaintiffs were not proved to be joint owners of the suit property to the extent of half share as claimed by the plaintiffs. The suit was, accordingly, dismissed.
6. Dissatisfied, plaintiffs carried an appeal before the learned District Judge, Solan. Page: 34This appeal was allowed by the learned Additional District Judge, Solan, on 24th June, 1994. The first appellate Court held that appellants and proforma respondents in the Civil Appeal were co-owners in the suit property to the extent of half share and were entitled for separate possession and partition. However, keeping in view the nature of the property, it was not found convenient to divide the property in equal share. The learned Additional District Judge decreed that the property be put to public auction and half of the sale proceeds be given to the plaintiffs and the other half to the respondents in equal share.
7. Aggrieved, the defendants have approached this Court in Regular Second Appeal. The appeal was admitted on 8th November, 1994 on the following substantial questions of law:
(1) Whether the suit is barred by the principle of res judicata?
(2) Whether the learned lower appellate Court erred in law in accepting the additional evidence?
8. So far the question of suit being barred by principle of res judicata is concerned, such principles are not attracted in the present Case. There is no scope of dispute that an order made under Order 9, Rule 8 of the Code of Civil Procedure would not amount to res judicata, as such, a suit cannot be said to have been heard and finally decided by the order of dismissal made for the non-appearance of the plaintiffs under Order 9, Rule 8 of the Code. The only effect of an order made under Order 9, Rule 8 is that a fresh suit based on the same cause of action is precluded by the provisions of Order 9, Rule 9 of the Code. The question, in the circumstances, is whether the second suit for partition filed by the plaintiffs is not maintainable in view of the bar created under Order 9, Rule 9 of the Code.
9. So far the question, whether appellate Court erred in law in accepting the additional evidence, is concerned, it is noticed that the additional evidence was permitted to be led by the learned District Judge on the concession made by the defendants.
10. The order dated 31st July, 1992 of learned District Judge reads:
31-7-1992 Present: Shri K.L Gupta, Adv., for the appellant.
Shri R.K Garg, Adv., for respondents.
Reply filed. Ld. Counsel for the respondents have no objections to the applications u/O. 41, Rule 27, CPC and u/S. 65 Evidence Act. The same are allowed subject to costs of Rs. 220/-.
For additional evidence to come up on 26-8-1992”.
11. I have heard learned counsel for the parties in second appeal and gone through the record.
12. In the facts and circumstances noticed above. It is not open to the defendant-appellants to challenge the order permitting the plaintiffs to lead additional evidence under Order 41, Rule 27 of the Code of Civil Procedure. This question does not survive.
13. Rule 8 of Order 9 of the Code provides for the dismissal of the suit where the defendant appears and the plaintiff does not make appearance when the suit is called for hearing unless, of course, the defendant admits the claim, or part thereof, in which case the Court has to pass a decree against the defendant upon such admission.
14. Rule 9 of Order 9 of the Code provides for the restoration of the suit dismissed under Rule 8 for non-appearance. The Rule mandates that where a suit is dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.
15. It may be noticed that where the plaintiff fails to appear and the suit is dismissed in default under Rule 8 of Order 9, he is precluded from filing a fresh suit in respect of the same cause of action. The bar under Order 9, Rule 9 would not apply unless the causes of action are identical in substance.
16. Rule 9 of Order 9 is based on sound public policy that no defendant should be vexed twice on the same cause of action.
17. It will also not apply to the cases where the cause of action is recurring or continuous. The right to enforce partition is a legal incident of a joint tenancy, and so long such tenancy subsists, a party has a continuous right for partition.
18. In Nasarat-Ullah v. Mujib-ullah (1) 1891 ILR 13, All 309, principle was laid that so long the property is jointly held, so long does a right of partition continuous. This principle was reiterated in Bisheshar Das v. Page: 35Ram Prasad, 1906 ILR 28 All 627. In that case plaintiffs and defendants were members of Joint Hindu family. The plaintiffs filed a suit for partition of the joint assets. The suit was dismissed in default. The plaintiffs brought a fresh suit for partition of the assets. The trial Court dismissed the suit. However, the first appellate Court held that the second suit was barred, as the former suit was regularly dismissed and the remedy was only by way of an appeal.
19. A Division Bench of Allahabad High Court, in this background, held:
“As it appears to us, the right to enforce partition is a legal incident of a joint tenancy, and so long as such tenancy subsists so long may any of the joint tenants apply to the Court for partition of the Joint property”.
20. In Madhura Gramani v. Thumala Sesha Reddy, (1926) ILR 49 Mad 929 : (AIR 1926 Madras 1018), a suit for partition of certain property in which plaintiff claimed 3/4th share was dismissed in default under Order 9, Rule 8 of the Code. A second suit was brought for partition. It was contended that the second suit for partition was barred under Rule 9 of Order 9.
21. The learned Judges in appeal held:
“In the present case, when the suit of the plaintiff's assignor was dismissed in 1917 she was relegated to her right of possession as joint owner and consequently to her right to partition, a right which accrues from time to time, for this right had not been taken away by the prior litigation”.
22. In Mukha Singh v. Ramchariter Singh, AIR 1956 Patna 143, plaintiff, who was a co-sharer in certain lands, brought a suit for declaration of his title and confirmation of possession and, in the alternative, for possession on the allegation that a cloud was cast on his title by the rejection of his prayer for mutation by the Land Registration Deputy Collector. This suit was dismissed under Order 9, Rule 8 of the Code of Civil Procedure for non-appearance of the plaintiff. The plaintiff subsequently brought a suit for partition of his share in the land on the ground that he was finding it difficult to manage the land along with his co-sharers.
23. A single Judge of the Patna High Court held that the subsequent suit for partition was not barred by the provisions of Order 9, Rule 9 as cause of action for partition suit is recurring one and, therefore, the bar under Order 9, Rule 9 will not operate in the case of partition suits of the same property.
24. In Manohar Lal Behari Lal v. Onkar Das alias Omkar Dass, AIR 1959 Punjab 252, A Division Bench of Punjab High Court construing the provisions of Order 9, Rule 8 and Order 9, Rule 9 of the Code observed:
“A suit for partition dismissed for default under Order 9. Rule 9 of the Code of Civil Procedure 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 ensures so long as the joint tenancy continuous”.
25. Mr. Aneesh Garg contends, with considerable tenacity, that even if it be assumed that the cause of action in partition suit is recurring then it has to be shown by the plaintiff that something happened between the dismissal of the suit in default and laying of the fresh suit which gave cause of action to the plaintiff. He refers to the Law of Lexicon by Justice M.C Desai, Volume-II, to impress that “Recurring” means a happening again and again and not that which occurs only once. The argument is misplaced and cannot be accepted.
26. I have already observed that cause of action is continuous in partition cases which subsists so long the property is held jointly. In other words, the joint owner can file a suit for partition until partition is actually effected irrespective of the fact whether earlier suits for such partition were dismissed in default or an earlier decree for partition was not acted upon.
27. Mr. Garg also refers to Bengal Waterproof Limited v. Bombay Waterproof Manufacturing Company, AIR 1997 SC 1398, K.S Sundararaju Chettiar v. M.R Ramachandra Naidu, (1994) 5 SCC 14 : (AIR 1994 SC 2129) and N.R Narayan Swamy v. B. Francis Jagan, (2001) 6 SCC 473 : (AIR 2001 SC 2469). The ratio of these authorities is neither of any assistance to the petitioners nor is applicable in the facts of the present case.
28. Mr. G.D Verma, learned Senior Page: 36Counsel for the respondents, refers to Sadhu Singh v. Kaur Singh, 1992 (1) Rec Civ R 444 (Punj and Har) and Ranjit Singh v. Gurnam Singh, 1998 (4) Rec Civ R 528 : (1999 AIHC 989) (Punj and Har) and submits that cause of action in partition cases is continuous and, therefore, second suit, is not barred under Order 9, Rule 9 of the Code.
29. In Sadhu Singh the principle that right to enforce partition is a legal incident of a joint tenancy and as long as such tenancy subsists, any of the joint tenants may sue for partition of the joint property was reiterated.
30. In Ranjit Singh it was held that where the cause of action was continuous the second suit would not be barred under Order 9, Rule 9 of the Code of Civil Procedure.
31. In the facts and circumstances of this case, the subsequent suit for enforcing partition, in the face of first suit for the same relief having been dismissed in default under Order 9, Rule 8 of the Code of Civil Procedure is not precluded by the provisions of Order 9, Rule 9 of the Code. The question is, accordingly, answered.
32. In result, the appeal fails and is dismissed. However, there will be no order as to costs.
Appeal dismissed.
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