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2009 Supreme(Pat) 1384
PATNA HIGH COURT
Ravi Ranjan, J.
Sheo Nandan Singh S/o Late Raj Karan Singh
Versus
Ram Bali Singh
C.R. No. 2182 of 2006
Decided On : NOVEMBER 6, 2009
The central legal point established in the judgment is that the subsequent suit for the same cause of action was not barred under Order IX Rule 9 due to the recurring nature of the partition as a cause of action.
Headnote:
Order IX Rule 9 - Barred Suit - The court held that the subsequent suit for the same cause of action was not barred under Order IX Rule 9 as the properties still remained joint between the parties, considering partition as a recurring cause of action.
Fact of the Case:
The civil revision was filed against the order rejecting the prayer to hold the suit as barred under Order IX Rule 9 of the Code of Civil Procedure. The petitioners argued that the earlier suit had been dismissed for default under Order IX Rule 8, making the subsequent suit barred. The opposite parties contended that issues had already been framed in the suit, and the objection raised by the petitioners was against the provisions of Order XIV Rule 2 of the Code.
Finding of the Court:
The court analyzed the provisions of Order IX Rule 9, Order XIV Rule 2, and Order VII Rule 11(d) of the Code. It held that the subsequent suit was not barred under Order IX Rule 9 as partition was considered a recurring cause of action until the properties were partitioned finally. The court dismissed the civil revision, stating that the court below had not committed any jurisdictional error.
Issues: The issues involved the dismissal of the earlier suit, the framing of issues in the current suit, and the applicability of the provisions of the Code of Civil Procedure.
Ratio Decidendi: The court's decision was based on the interpretation of Order IX Rule 9 and the consideration of partition as a recurring cause of action until the properties were partitioned finally.
Final Decision: The civil revision was dismissed, and the court held that the subsequent suit was not barred under Order IX Rule 9.
1. Heard learned counsel for the petitioners as well as O.P. Nos. 1 to 6.
2. T his civil revision is directed against the order dated 28.9.2006 passed by the 5th Subordinate Judge, Purnea, in T.S. No. 230 of 2004, whereby the Court below had rejected the prayer of the petitioners to hold the suit as barred under provisions as contained in Order IX Rule 9 of the Code of Civil Procedure (hereinafter referred to as "the Code") after determining the same as a preliminary issue.
3. A supplementary affidavit has been filed on behalf of the petitioners appending therewith order-sheet of the earlier Title Suit No. 198 of 1975 including the order dated 15.4.1989, dismissing the suit.
4. It is submitted that it would be manifest from the order dated 15.4.1989 passed in T.S. No. 198 of 1975 that the suit had been dismissed for default in the presence of the defendant, thus, it was a dismissal under Order IX Rule 8 of the Code. As a result of which the subsequent suit brought for same cause of action was barred as per the proviso under Order IX Rule 9 of the Code. It is submitted that the Court below had erred in holding that it was not clear as to under which provision the earlier suit had been dismissed and had also stated that partition being recurring cause of action till the properties remain joint between the parties, the subsequent suit would be maintainable.
5. Learned counsel for the opposite parties submitted that issues have already been framed in this suit and thereafter this objection has been raised by the petitioners which is clearly in teeth of the provisions contained in Order XIV Rule 2 of the Code which stipulates that if the issues have been framed then the Court shall decide all the issues which are involved in the case.
6. So far the aforesaid contention of the opposite parties is concerned. I do not find any force in the same as the sub-rule (2) of Order XIV itself provides that if the Court is of opinion that the case or any part thereof could be disposed of on an issue of law only, it may try that issue first if the same relates to a bar to the suit created by any law for the time being in force. That apart, there is also a provision under Order VII Rule 11(d) of the Code, whereunder the defendant can seek rejection of the plaint if the same is barred by law.
7. So far the bar under Order IX Rule 9 is concerned from, it is true that the language is clear in terms that the subsequent suit for same cause of action is completely barred and only course open to the plaintiffs is to file an application for setting aside the order of dismissal of the suit before that Court. Relevant provision is quoted as under:-
Order IX Rule 9(1). Decree against plaintiff by default bars fresh suit. Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.
But he may apply for an order to set the dismissal aside, and if he satisfied the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit."
Identical provision is also under Order XXII Rule 9 which is quoted as follows;- "Order XXII Rule 9. Effect of abatement or dismissal.-(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. xx xx xx xxx"
8. This court had an occasion to examine the effect of Order XXII Rule 9 on subsequent partition suit after abatement/dismissal of previous one in C.R. No. 465 of 2006* (Ram Krishna Thakur vs. Om Prakash Thakur & Others). This Court had followed the decision of Division Bench of this court in Dilo Rana and Another vs. Munshi Kunj Behari Prasad and Others, AIR(35) 1948 Patna 244 and had held that partition is recurring cause of action till the property is not partitio
