The main legal point established in the judgment is that the right to file a fresh suit for partition continues as long as the property remains jointly held, and the dismissal of an earlier suit for want of prosecution does not bar the maintainability of the subsequent suit.

1. Rule. Heard finally.

2. Challenge in the present writ petition is to the order dated 19.12.2013 passed by the Appellate Court allowing the Misc. Civil Appeal filed by the present respondents and setting aside the order passed by the trial court dismissing Regular Civil Suit No.279/2007 under the provisions of Order 9 Rule 9 of the Code of Civil Procedure (for short the Code).

3. The relevant facts are that one Kasabai Pote, the predecessor of the present respondents had filed Regular Civil Suit No.851/1998 for partition of agricultural land bearing survey nos.56 and 57. It was the case of the said Kasabai that the land in question belonged to her father and that same was ancestral property. After the death of her father, the predecessor of the present petitioner her brother was looking after the said property. Hence, suit for partition and separate possession came to be filed. Her brother – Narayan was arrayed as defendant. On 30.07.2002 Regular Civil Suit No.851/1998 came to be dismissed for want of prosecution. Thereafter, no steps were taken to restore the suit.

4. After the death of Kasabai her legal heirs who are the respondents herein filed Regular Civil Suit No.279/2007 stating therein that they were entitled for partition of the suit properties in their capacity as being children of Kasabai. The aforesaid suit was filed against the present petitioners. Written statement came to be filed by the present petitioners opposing the suit. During pendency of the said suit an application vide Exh.42 came to be filed by the defendants stating therein that as the earlier suit filed by Kasabai had been dismissed in default and the same was never restored, the subsequent suit filed by legal heirs of Kasabai was not tenable and the same was barred under law. The trial court on 05.04.2011 held that as the earlier suit was dismissed for want of prosecution the subsequent suit seeking identical reliefs was not tenable and hence, proceeded to reject the plaint by holding that the suit was barred by provisions of Order 9 Rule 9 of the Code. This rejection of the plaint was challenged by the original plaintiffs by filing a Miscellaneous Civil Appeal and the Appellate Court vide its order dated 19.12.2013 allowed said appeal on the ground that the cause of action for seeking partition was a continuous cause of action and hence, the dismissal of the earlier suit would not bar the filing of the subsequent suit. This order is under challenge at the instance of the original defendants.

5. Smt. V.N. Chitnavis, learned counsel appearing for the petitioners submitted that the earlier suit seeking relief of partition and separate possession of the very same property had been dismissed in default and said suit was never restored. As the legal heirs of Kasabai were claiming through their mother, the bar under the provisions of Order 9 Rule 9 of the Code was applicable and hence, a fresh suit based on the same cause of action was not tenable. By relying upon the decision of the Supreme Court in AIR 1965 SC 295 Suraj Rattan Thirani and others v. Azamabad Tea Co. Ltd. and others, it was submitted that the word “plaintiff” would include legal representatives of the plaintiff even for the purposes of Order 9 Rule 9 of the Code and hence, the subsequent suit at the instance of the legal representatives of Kasabai was not tenable. Learned counsel also placed reliance on the decision of the Supreme Court in AIR 1980 SC 1655 M/s. Parasram Harnand Rao v. M/s. Shanti Parsad Narinder Kumar Jain and another as well as the decisions of learned Single Judge in 2003(1) Mh.L.J. 472 Darachand Harakchand Oswal and others v. Suresh Waman Karmarkar and another and 1998(3) Mh.L.J. 252 Pratapchand Lakhamaji Jain v. Smt. Lilabai Krishanath Surve. It was therefore, submitted that the Appellate Court was not justified in holding that the subsequent suit for partition and separate possession was tenable.

6. None has appeared on behalf of the respondents though served. H