1. The 8th defendant in OS.No.256/2011 on the file of the Sub Court, Payyannur is the revision petitioner herein. The plaintiff, who is the first respondent herein filed OS.No.256/2011 on the file of the Sub Court, Payyannur for partition of the plaint schedule properties and allotment of his share in the property. Earlier the same plaintiff filed OS.No.9/2009 for the same relief and in that suit. Contesting defendants appeared and filed written statement claiming certain right in themselves and denying the partibility of the properties and a commission was taken out and the commissioner filed a report and thereafter since the plaintiff felt that extensive amendment is required in the plaint for sustaining the plaint, he not pressed that suit and filed the present suit OS.No.256/2011 for the same relief.

2. The 8th defendant and others entered appearance and filed a written statement denying the right of the plaintiff and also raised a plea that the present suit is barred by res judicata in view of the fact that the earlier suit OS.No.9/2009 was dismissed as not pressed which will amount to abandoning the right under Order 23 Rule 1(4) of the Code of Civil Procedure. On the basis of the plea along with other contentions regarding the availability of the properties for partition and denying the right to the plaintiff to claim partition of the plaint schedule properties, issues were framed of which the following issues namely whether the suit is maintainable and whether the suit is barred by res judicata were framed as issue No.1 and additional issue No.1 respectively and the same were heard as preliminary point under Order 14 Rule 2(2) of the Code and the court below after hearing both sides answered the issue in favour of the plaintiff holding that the suit is not barred by res judicata and the suit is maintainable. That finding of the court below is being challenged by the petitioner by filing the above revision.

3. Heard Sri. M.V. Amaresan, learned counsel appearing for the revision petitioner, Sri. Mohan Jacob George, learned counsel appearing for the first respondent and Sri. Gracious Kuriakose, senior counsel appearing for the 10th respondent. Others remained absent.

4. Learned counsel appearing for the revision petitioner submitted that since an earlier suit OS.No.90/2009 which was filed by the present plaintiff for the same relief was dismissed as not pressed, that will amount to abandonment of the claim of the petitioner as provided under Order 23 Rule 1(4) of the Code. Once he has abandoned his claim, it would be deemed to have been decided against him in view of explanation (1) to Section 11 of the Code as it was a former suit, which has been decided as contemplated therein. So the suit is barred by the doctrine of res judicata. He had also relied on the decision reported in Muhammed Master v. Abu Haji (1981 KLT 578) in support of his case. He had also argued that the dictum laid down in) is not applicable to the facts of this case.

5. On the other hand, learned counsel for the first respondent submitted that as far as the suit for partition is concerned even if it is dismissed for default, there is no bar for filing a fresh suit. Further in order to attract the doctrine of res judicata, the earlier suit must have been tried and decided on merit on the same subject matter and that decision must have become final and that was rendered by a competent court of jurisdiction. Unless the matter has been decided on merit but the same was dismissed on technicalities, even then that will not amount to res judicata in respect of the subsequent suit. Further, the subsequent suit was filed, so the earlier suit was not pressed and as such there is no res judicata arises. He had relied on the decisions reported in Mohammed v. Canara Bank (1991 (2) KLT 455), Soman Nair v. State of Kerala (2008 (2) KLT 103), Vasu v. Varghese (2007 (2) KLT 1013), State of U.P v. Jagdish Sharan Agrawal (2009 (1) SCC 689), Manohar Lal Behari v.