In the case of a suit for partition, the partition is a continuous cause of action, and hence there can legally be no question of res-judicata.

S.N.Hussain, J.

1. Heard learned counsel for the parties.

2. The petitioner is defendant of Title Suit No. 7 of 2001 which was filed by the sole opposite party for partition of his moiety share.

3. This revision is directed against the order dated 8.12.2004 passed in the aforesaid suit by which the learned sub-ordinate Judge-1, Naugachia, rejected the defendants petition filed u/s. 11 of the Code of Civil Procedure (hereinafter referred to as the Code for the sake of brevity) claiming that the suit was barred by the principle of res-judicata.

4. The learned counsel for the petitioner vehemently challenges the aforesaid order claiming that earlier plaintiff-opposite party had himself filed a suit for partition bearing Title Suit No. 191 of 1980 against the same person which was dismissed for default in the year 1994 whereafter he filed Misc. Case No. 9 of 1994 for restoration of the said Title Suit, but the said Misc. Case was also dismissed in the year 2000.

5. The learned counsel for the petitioner relied upon the provision of Order IX, Rule. 9, of the Code and submits that decree against the plaintiff by default bars a fresh suit. He also relies upon two decisions, one of this Court in the case of Ramji Jankiji and Anr. V/s. Mauni Baba Kale Kambalwala Jai Siyaram Dasji and Ors., reported in - and the other of Allahabad High Court in the case of Behari Lal V/s. Mangat Ram Kohli, reported in - and submits that both the decisions specifically held that where a petition under Order IX, Rule 9 of the Code has been rejected, no suit can be legally maintainable for the same cause of action.

6. On the other hand, the learned counsel for the plaintiff- opposite party contends that the learned Court below has considered the entire matter in detail and has come to a definite finding that the provision of sec. 11 of the Code is not applicable in the instant matter as this suit was for partition. He further submits that there is no illegality or perversity in the impugned order and hence this civil revision is not maintainable.

7. After hearing the learned counsel for the parties and after perusing the materials on record, it is quite apparent that the provision of Order IX, Rule 9 of the Code specifically bars a fresh suit in respect of the same cause of action. But here the instant suit is a suit for partition and the partition is a continuous cause of action which arising merely by refusal of the other side to partition the joint family property. Hence, if the defendant had earlier refused to partition the joint family property that was one cause of action for which earlier suit was filed and subsequently when again his request for partition was refused by the defendant it was obviously a different cause of action, for which the plaintiff-opposite party had every right to file a fresh suit for partition. It may be pointed out that both the decisions cited by the learned counsel for the petitioner are not applicable to the instant case because they are not with respect to the suits for partition as the suit in case of Ramji Jankiji, supra, was for declaration of right and title, whereas the suit in case of Beharilal, supra, was for recovery of loan and in such matters definitely the provision of Order IX, Rule 9 of the Code would come into play. But so far the claim of partition is concerned, it is a continuous cause of action and hence there can legally be ho question of res-judicata.

8. In the aforesaid circumstances, I do not find any illegality or jurisdictional error in the impugned order of the learned Court below which has considered the entire aspect of the matter legally and properly. Accordingly, this civil revision is dismissed.