IMPORTANT POINT
Maintainability of partition suit—Since partition is a recurring cause action so long as property is joint hence plaintiffs right of partition will subsist even after abatement of previous suit for partition.

I.A. No. 1283 of 2006

Dr. Ravi Ranjan, J.—This interlocutory application had been filed on behalf of the petitioner for condoning the delay in filing of Civil Revision. This Civil Revision was initially filed on 7.3.2006, however, ultimately after removal of defects it could finally be filed on 10.3.2006.

2. It had been stated that as per the calculation of the office, the limitation had expired on 9th of November, 2005.

3. I have heard learned counsel for the petitioners as well as the opposite parties.

4. It had been submitted on behalf of the petitioner that on advice the petitioner had filed Misc. Appeal Na. 29 of 2005 challenging the impugned order dated 19.7.2005 before the District Judge, West Champaran at Bettiah, however, since the appeal was not maintainable, the appeal was permitted to be withdrawn with a liberty to the appellant to seek relief at the appropriate forum. Thereafter, the petitioner had fallen ill and could come to contact his concerned Advocate on 23.2.2006 and ultimately the appeal could be filed on 7.3.2006.

5. Though no counter affidavit has been filed on behalf of opposite parties to this interlocutory Application, learned counsel for opposite parties vehemently opposed the prayer of the petitioner for condonation of the delay. It had been submitted on behalf of the opposite parties that day to day explanation of delay had not been furnished by the petitioner.

6. However, on being satisfied with the sufficiency of reasons shown in this Interlocutory Application, I.A. No.1283 of 2006 is allowed and the delay in filing of this Civil Revision is hereby condoned.

7. Now, I proceed to consider the Civil Revision on its merit which had been heard and being disposed of at this stage with the consent of the parties.

8. This Civil Revision is directed against the order dated 19.7.2005 passed in Partition Suit No. 209 of 2003 by the Sub-Judge-I. West Champaran at Bettiah, whereby he had dismissed the suit being not maintainable in view of the provisions as contained in Order XXII, Rule 9 and Order XIV, Rule 2 of the Code of Civil Procedure (hereinafter referred to as “the Code”).

9. The plaintiff-appellant-petitioner had filed Petition Suit No.209 of 2003 before the Sub-Judge, West Champaran at Bettiah implicating the opposite parties as defendants for partition of the suit lands to the extent of ½ share in favour of the plaintiff-petitioner along with other consequential reliefs. Defendants-respondents-opposite parties appeared and filed written statement. On 4.8.2004, the opposite parties filed a petition under Order XXII, Rule 9 and Order XIV, Rule 2 of the Code raising the question of maintainability of the suit on the ground that the father of petitioner had also filed Partition Suit No.141/71 against the branches of late Manorath Thakur with respect to the same properties but the suit had been dismissed as abated on 28.5.1975 due to the non-substitution of legal representatives of the deceased defendant Raghunath Thakur within the prescribed period of limitation. Thus, in the light of the provisions under Order XXII, Rule 9 of the Code, it was urged by the opposite parties, that the suit was not maintainable as the order of abatement had become final since no appeal was preferred thereto and filing of fresh suit on same cause of action was barred. The plaintiff-petitioner raised objection thereto and submitted that though the Partition Suit No.141 of 1971 stood abated on account of non-substitution of legal representatives of late Raghunath Thakur, still the present Partition Suit could not be said to barred under the said provision of law as partition is recurring cause of action so long the properties remain joint.

10. The court below had held that the suit was not maintainable on the ground its being barred under the provisions of Order XII, Rule 9 and Order XIV, Rule 2 of the Code on account of the fact that for selfsame properties Partition Suit No. 141/71 was brought by the father of the pla