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Madurai Bench of Madras High Court
THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN
V. Ponramu
Versus
B. Usharani & Others
C.R.P.(PD)(MD)No.284 of 2008 & M.P(MD).No.2 of 2008
Decided On :Decided On : 27-06-2008
Partition - Maintainability of subsequent suit - Order 7 Rule 11, Section 151 of C.P.C - O.S.No.62 of 2005 - Order 9 Rule 9 of C.P.C - AIR 1935 Madras 458, 1967(1) MLJ 175 - The court held that the subsequent suit for partition was maintainable despite the dismissal of the earlier suit for default, as the joint status was intact and there was a continuing cause of action. The court also emphasized that even a defendant can file an application to transpose himself as a plaintiff in a suit for partition.
Fact of the Case:
The revision petitioner filed a suit for partition, which was contested by the respondents invoking Order 7 Rule 11 and Section 151 of C.P.C, claiming that the suit was not maintainable due to the dismissal of an earlier suit for the same relief.
Finding of the Court:
The court found that the subsequent suit for partition was maintainable as the joint status was intact and there was a continuing cause of action, despite the dismissal of the earlier suit for default.
Issues: The main issue was whether the subsequent suit for partition was maintainable in view of the dismissal of the earlier suit for default.
Ratio Decidendi: The court held that the jointness of the property had not come to an end with the dismissal of the earlier suit, and there was a continuing cause of action for partition. The court also emphasized that even a defendant can file an application to transpose himself as a plaintiff in a suit for partition.
Final Decision: The Civil Revision Petition was allowed, setting aside the order that deemed the subsequent suit for partition as not maintainable.
This civil revision petition is directed against the order dated 28.12.2006 in I.A.No.56 of 2006 in O.S.No.62 of 2005, on the file of learned Additional Subordinate Judge, Thanjavur.
2. The suit in O.S.No.62 of 2005 has been preferred by the revision petitioner against the respondents and others praying for a preliminary decree of partition of the suit property and for separate allotment of his share. The said suit was contested by the respondents along with some others.
3. Subsequently, the respondents, being the defendants 132, 133, 135 and 136, filed an application in I.A.No.56 of 2006 invoking Order 7 Rule 11 as well as Section 151 of C.P.C. to reject the plaint in O.S.No.62 of 2005. In the affidavit filed in support of the application, it was the case of the respondents that the revision petitioner had filed a suit earlier in O.S.No.137 of 1994 for the very same relief and the said suit was dismissed for default and as such, the present suit for partition on the basis of the very same cause of action was not maintainable. It was the further contention of the respondents that they were all subsequent purchasers of the property for available consideration and those transactions were all made, after the dismissal of the suit filed by the petitioner in O.S.No.137 of 1994.
4. The said application was contested by the revision petitioner on various grounds. It was his contention that the respondents were not parties to the earlier application and the present suit, being one for partition, the same cannot be said to be barred on account of the dismissal of the earlier suit for default.
5. The learned trial Judge considered the rival submission and ultimately, the application was allowed as per order dated 28.12.2006. It is the said order, which is impugned in the present revision.
6. I have heard Mr.V.K.Vijayaraghavan, learned counsel appearing for the petitioner and Mr.K.Srinivasan, learned counsel appearing for the respondents.
7. The learned counsel for the revision petitioner contended that the suit being one for partition, there was continuous cause of action for the parties and the dismissal of the earlier suit for default does not prevent the petitioner from filing a fresh suit for partition, as the joint status was intact, even after dismissal of the earlier suit. It was his further contention that the present respondents were not parties to the earlier suit filed by the petitioner for partition and they are all subsequent purchasers and they cannot take the plea of statutory bar. The learned counsel also relied on the decision of this Court reported in AIR 1935 Madras 458.
8. Per contra, the learned counsel for the respondents submit that the subsequent suit was clearly barred on account of Order 9 Rule 9 of C.P.C. and as such, the learned trial Judge was perfectly correct in allowing the application filed by the respondents.
9. I have considered the submission of the learned counsel on either side as well as the impugned order of the learned trial Judge, which has given rise to the present revision.
10. It is the admitted case of the parties that the revision petitioner had earlier filed a suit in O.S.No.137 of 1994 praying for a preliminary decree of partition. In the said suit, the respondents were not parties and the said suit was dismissed for non-prosecution as per judgment and decree dated 18.09.1997. Subsequently, the petitioner appears to have filed a comprehensive suit impleading all the sharers as well as the subsequent purchasers. The learned trial Judge was of the opinion that since the earlier suit was dismissed for default and no liberty was granted for filing a fresh suit on the basis of the very same transaction, the subsequent suit was clearly barred on account of statutory bar as contained in Order 9 Rule 9 of C.P.C. Therefore, the only point, which arises for consideration in the present revision, is as to whether the subsequent suit for partition is maintainable, in view of the dismissal of
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