The main legal point established in the judgment is that the bar under Order IX Rule 9 C.P.C and Order XXIII Rule 1(4) C.P.C is applicable to partition suits, and re-litigation can amount to an abuse of process of Court.

This Civil Revision Petition is directed against the order dated 12.06.2000 passed by the Subordinate Judge, Udumalpet in I.A.No.168 of 2000 in O.S.No.278 of 1999, dismissing the Petition filed under Order XXIII Rule 1(4) C.P.C. The Defendants are the Revision Petitioners.

2. The Suit Property relates to Four Items of Properties in Chinnampalayam Village, Pollachi Taluk.

3. Case of the Respondent / Plaintiff is that Plaint “A and B Schedule” properties were the absolute properties of Plaintiff’s Mother Krishnammal. She was in exclusive possession and enjoyment of the suit properties. The Plaintiff, D-1 and D-5 are the Son and Daughters of the said Krishnammal. Out of her love and affection, Krishnammal had executed the Settlement Deed on 22.04.1958 settling the properties in favour of the Plaintiff. Thereafter, the Plaintiff was in possession and enjoyment of the “B Schedule” settled property. The Plaintiff was working in Cheran Transport Corporation, Pollachi and was unable to look after the suit property. Hence, the Plaintiff and his Mother have leased out the entire suit property to Fourth Defendant. The Plaintiff was maintaining his Mother and he was receiving the rent from the Fourth Defendant. The Plaintiff’s Mother died on 15.03.1970 leaving the Plaintiff, Mylathal and Valliammal as her legal heris. The Plaintiff is entitled to 1/3 share in “A Schedule” property.

4. The Plaintiff has filed number of litigations claiming his share in “A Schedule” properties and asking his Title to Plaint “B Schedule” property. O.S.No.278 of 1999 is the third round of litigation between the parties. For better appreciation, all the contentious points urged by the parties, it is necessary to trace the previous litigations.

(i) O.S.No.394 of 1990 : The Respondent / Plaintiff

Sub-Court, Udumalpet has filed this Suit against

(1) Mylathal (2) Jayakumar (3) Subba Gounder (4) Palani Gounder (5) Valliammal. The Suit has been filed by the Plaintiff for

(a) declaring the Plaintiff’s title to the suit Plaint “B” schedule property and direct the fourth Defendant to deliver possession of the Suit schedule property to the Plaintiff;

(b)Partitioning the A Schedule property in to three equal shares allot and give separate possession of one such share to the Plaintiff;

(c)restraining the fourth defendant permanently from delivering the possession of the suit property to the Defendant 1 to 3 And For other reliefs.

(ii) I.A.No.979 of 1993:- The Suit in O.S.No.394 of 1990 was dismissed for default on 15.03.1993. Plaintiff Kandasamy filed I.A.No.979 of 1993 to restore the Suit on 02.04.1993. This I.A.No.979 of 1993 was allowed on terms on 16.06.1994 with a condition that Mr.Kandaswamy should pay a cost of Rs.250/- to the Respondents (Dr.S.Jayakumar and Sri Subbiah Gounder) on or before 05.07.1994 failing which the petition shall stand dismissed. Mr. Kandaswamy did not pay any cost. Hence, I.A.No.979 of 1993 stood dismissed, resulting in the non-restoration of O.S.No.394 of 1990.

(iii) O.S.No.278 of 1999 Nine years after the

Sub-Court, Udumalpet :- Suit in O.S.No.394 of 1990, the Plaintiff Kandasamy filed this Suit against (1) Dr.S.Jayakumar (2) Subbiah Gounder (3) Mylathal and (4) Palani Gounder.

This suit has been filed for :-

(a) division of Plaint-A Schedule Property into two equal shares and put the Plaintiff in possession of one such share;

(b)declaring the right and title of Plaintiff to Plaint-B Schedule Property and for possession thereof;

(c)granting mesne profits from the date of suit till delivery of possession.

And

For other reliefs.

(iv) I.A.No.168 of 2000:- This Application has been filed under Order XXIII Rule 1(4) C.P.C. The Defendants have filed this Petition to reject the Plaint in O.S.No.278 of 1999. In the supporting affidavit, the Defendants have averred that O.S.No.394 of 1990 stood dismissed resulting in non-restoration of the Suit in view of non-payment of the conditional cost ordered in I.A.No.979 of 1993. Without disclosing the s