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RAJESH S. PATIL
Chandrakant S/o Bhaurao Waghmare – Appellant
Versus
Mukesh S/o Rajendra Waghmare – Respondent
JUDGMENT :
RAJESH S. PATIL, J.
1. Heard. By consent of the parties, taken up for final disposal at the stage of admission.
FACTS:
2. The Respondent no. 1 to 6 herein are the Original Plaintiffs who had filed suit for partition, declaration, possession and perpetual injunction. The applicant herein is the original defendant, who, by way of this Civil Revision Application, has challenged the order dated 29.04.2019 passed below Exh.71 in R.C.S. No. 1724/2012 by 11th Joint Civil Judge J.D. Aurangabad, thereby rejecting application Exh.71. The said application Exh.71 was preferred under the provisions of Order VII Rule 11(d) of the Code of Civil Procedure, seeking rejection of the plaint in R.C.S. No. 1724/2012, being barred by law as per Order IX Rule 8 of CPC. The said application Exh.71 was filed on 29.10.2018. After hearing both the parties, the said application was rejected on 29.04.2019. This Court, vide order dated 20.04.2022, issued notice for final hearing to the respondents and stayed the trial.
SUBMISSIONS:
3. The applicant’s case is that on the same cause of action the plainti
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.
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.
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.
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 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 civil suit must disclose a valid cause of action; submission of frivolous claims to prolong litigation is impermissible and warrants rejection at the outset.
The main legal point established in the judgment is the need for a meaningful reading of the plaint, scrutiny of the cause of action, and prevention of illusory causes of action to avoid circumventin....
Only the original plaintiff is precluded from filing a fresh suit after dismissal in default; those claiming under the plaintiff are not affected. Genuine circumstances justified withdrawal from the ....
The bar under Order IX, Rule 9 applies only to dismissals under Rule 8 of the Civil Procedure Code; if dismissed under Rule 3, a fresh suit may be filed.
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