A suit for partition or redemption is not barred by Order 23, rule 1 of the Code of Civil Procedure, even if the plaintiff withdraws the suit without seeking permission to bring a fresh suit on the same cause of action or abandons a part of the claim, as the cause of action is a recurring one.

( 1 ) THE first appellant is the mother of appellants Nos. 2 to 4. She is the wife of Babu Ram, one of the two sons of deceased Kalyan Dass. For himself and on behalf of his sons, appellants Nos. 2 to 4 and another son Rattan Lal, Babu Ram instituted suit No. 567 of 1957 in the Court of Subordinate Judge 1st Class, Delhi, for partition of the suit properties and accounts on the ground that the said properties were joint family properties. The defendants to this suit were his brother Jodhi Ram, the latter s sons and his mother. On December 31, 1957, Babu Ram filed an application merely staling that he inttended to withdraw the suit and did not want to pursue the same and prayed that the suit may be consigned to the record room. Both Babu Ram and Jodhi Ram supported this application by their respective statements recorded on the same date and the suit was dismissed. Liberty was not reserved by Babu Ram either in his application or in his statement in Court to institute a fresh suit in respect of the subject matter of this suit nor was permission granted by the Court to withdraw with liberty to institute a fresh suit. It may be stated that appellants Nos. 2 to 4 are minors.

( 2 ) THEREAFTER Jai Devi and her sons filed the suit out of which the present appeal arises on November 3, 1958 against Jodhi Ram, his sons, Mohan Devi wife of the deceased Kalyan Das and Babu Ram. This suit was for partition of the very same properties and for accordance etc. in respect thereof. It was also prayed in this suit that the withdrawal by Babu Rani of the earlier suit was vitiated by fraud and was illegal, ineffective arid without jurisdiction.

( 3 ) SINCE three of the sons of Jodhi Ram (defendants Nos. 5 to 7) were minors and their eligible relations were not prepared to become their guardians for the suit, the Subordinate Judge appointed Sat Parkash, Ahlmad of his Court, as guardian-ad-litem.

( 4 ) ON the written statements filed, the Subordinate Judge framed the following three preliminary Issues :

ISSUE No. 1-Whether the plaint has been properly valued for purposes of court fee and jurisdiction ? Issue No. 2-Whether the present suit is not barred by Order 23. rule 1 Civil Procedure Code ? Issue No. 3-Have the plaintiffs a locus standi to bring a suit for partition in the life time of defendant No. 9?

( 5 ) ISSUE No. 1 was decided in favour of the appellants. Issue No. 3 was decided in favour of plaintiffs Nos. 2 to 5 but against Jai Devi appellant No. 1. Issue No. 2 was decided against the appellants and as a result of the finding on this Issue, the suit was dismissed leaving the parties to bear their respective costs. Even though the Ahlmad of the Court of the Subordinate. Judge had been appointed as guardian-ad-litem. necessary corrections were not made in the cause title of the plaint by showing that the Ahlmad had been appointed guardian-ad-litem of the three minors sons of Jodhi Ram and the name of Jodhi Ram continued to appeal in the plaint as their guardian. What is more, even in the decree which was drawn up consequent upon the dismissal of the suit, Jodhi Ram was shown as the guardian of his three minor sons and the name of the Ahlmad who had been appointed guardian-ad-litem was not indicated in the decree-sheet.

( 6 ) THE present appeal was filed, it is not disputed, well within time. Respondents Nos. 5, 6 and 7 were shown in the memorandum of appeal as being represented by their father Jodhi Ram and not by the Ahimad of the Court. When this appeal came up for hearing on January 7, 1970, the respondents took up a point that the appeal had been rendered incompetent as the guardian-ad-litem appointed by the trial Court for respondents Nos. 5 to 7 had not been shown as their guardian in the memorandum of appeal. The counsel for the appellants wanted time to invesitgate the matter and when the appeal was taken up for hearing on January 30, 1970, an application : C. M. No. 47 of 1970, was filed by the appellants. In this ap