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V. KAMESWAR RAO, C. M. JOSHI
Srinivas, Son Of Sri. Chikkamuniyappa – Appellant
Versus
M. C. Narayanaswamy, S/o. Chikkamuniyappa – Respondent
JUDGMENT :
(V. Kameswar Rao, J.) :
This appeal has been filed challenging the order dated 09.02.2018 on I.A.No.IX filed by respondents No.6 to 10 herein under Order VII Rule 11 read with Section 151 of C.P.C., whereby the learned II Addl. Senior Civil Judge and J.M.F.C., Kolar (hereinafter ‘Trial Court’) has allowed the application by passing the following order:
(b) The plaint is rejected U/O.7 Rule 11 (d) of CPC as the same is barred under the provisions of Order 9 Rule 9 of CPC.
(c) The plaintiffs are at liberty to seek restoration of O.S.No.534/2007 in Mis.petition No.42/2013.
(d) No order as to costs.
(e) Draw decree accordingly.”
2. The facts as noted from the record are, it was the case of the appellants/plaintiffs in the suit being O.S.No.144/2014 that certain suit properties are ancestral/joint Hindu Undivided Family properties as the same were purchased by the original propositus Sri. Chikkamuniyappa, the father of appellants and respondent No.1. Late Chikkamuniyappa died intestate on 18.10.1994 leaving the appellants and respondent No.1 as his legal representatives to succeed to his estat
The right to seek partition is a recurring cause of action, and a fresh suit is not barred by the dismissal of a previous suit for non-prosecution under CPC.
The right to seek partition is inherent and continuous for co-owners; prior dismissal of a partition suit does not bar subsequent suits, provided the parties are different.
A second suit for declaration and permanent injunction is maintainable if it presents a different cause of action, even if a previous partition suit was dismissed for default.
The main legal point established in the judgment is that a suit for partition can be barred by law and limitation if there is already a decree and final decree in place, and the plaintiff fails to en....
The main legal point established in the judgment is the application and interpretation of Order VII Rule 11 and Order II Rule 2 of the Code of Civil Procedure, 1908, to reject a suit for lack of caus....
Bar under Order IX Rule 9 of the Code does not apply in a suit for partition, since the right to enforce partition is a legal incident of a joint tenancy, and as long as such tenancy subsists, any of....
The main legal point established in the judgment is that the plea of res judicata requires consideration of the pleadings, issues, and decision in the previous suit, which is beyond the scope of Orde....
Dismissal of suit for default does not bar a fresh suit on distinct grounds; res judicata applies only when parties and cause of action are the same.
The court emphasized that the present suit does not hit Order 2 Rule 2 of C.P.C. and there is a cause of action to file the present suit.
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