K. R. PRASADA RAO, J.

( 1 ) THIS revision petition is filed by the defendants in O. S. No. 276 of 1994 on the file of the Court of Additional Civil Judge (Junior Division), bangalore Rural District against orders passed on 9-1-1998 (sic) dismissing the said application.

( 2 ) REVISION petitioners who are the defendants 3 to 6 in the suit O. S. No. 276 of 1994 filed the application LA. VI under Order 23 Rule 1 (4) of the CPC praying to dismiss the suit as the same is barred under the said provisions. The said application was dismissed by the Trial Court holding that the suit is not barred under the provisions of Order 23, Rule 1 (4) of the CPC. Aggrieved by the said order, defendants 3 to 6 filed the present revision petition.

( 3 ) IT is the contention of the revision petitioners-defendants 3 to 6 that the respondent-plaintiffs have previously filed a suit O. S. No. 6496 of 1989 in the City Civil Court, Bangalore for partition and separate possession of their alleged share in the suit schedule property and in the said suit Smt. Muniyamma, the wife of the deceased first defendant and the mother of these defendants was arrayed as third defendant. The said muniyamma died in the year 1993 during the pendency of the suit O. S. No. 6496 of 1989. Though the defendants intimated the death of Smt. Muniyamma by filing a memo in the said Court on 2-11-1993, the plaintiffs have not taken any steps to bring the L. Rs on record. So, the said suit stood abated against the said Muniyamma. However, on 14-11-1994 the Court passed an order ordering for return of the plaint for presentation before proper Court, since it had no territorial jurisdiction to try the suit, as the suit properties are situated outside the jurisdiction limits of the said Court. Instead of taking return of the plaint and presenting the same in the appropriate Court, plaintiffs have filed the present suit in the Trial Court for the same relief of partition and separate possession of their share in the suit properties. Defendants 3 to 7 therefore filed la. VI in the Trial Court contending that the present suit filed is not maintainable since plaintiffs have not taken leave of the Court as required under the provisions of Order 23, Rule 1 (4) of the CPC to withdraw the earlier suit and to file a fresh suit on the same cause of action. To the said application, the plaintiffs have filed their objections contending that since the suit properties are admittedly situated outside the jurisdiction limits of the City Civil Court, Bangalore, the said Court had no jurisdiction to entertain that suit. Though the City Civil Court ordered for return of the plaint for presentation to proper Court, it does not preclude them from initiating a fresh suit for partition in the Trial court which has got jurisdiction to entertain the suit. It is further contended by them that not taking return of the plaint of the previous suit and not presenting it in proper Court is a technical defect and it does not preclude them from filing a fresh suit for partition.

( 4 ) AFTER hearing the arguments advanced on both sides on the said application, the Trial Court dismissed the said application holding that, since the cause of action for filing the suit for partition is a recurring one, it is not necessary for the plaintiffs to obtain permission of the court below to withdraw the earlier suit filed by them and to seek permission to file a fresh suit and they could as well abandon their previous suit which was filed in the Court which has no jurisdiction and to bring the second suit for the same relief. It is also observed by the trial Court that Muniyamma-the 3rd defendant in the earlier suit O. S. No. 6496 of 1989 died on 23-8-1993, and since her husband who is the 1st defendant in the same suit is a party to the said suit, (sic) was an effective representation of the estate of Muniyamma and the earlier suit did not stand abated as contended by the defendants. The Trial Court therefore dismissed LA. VI.

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