A second suit for declaration and permanent injunction is maintainable if it presents a different cause of action, even if a previous partition suit was dismissed for default.

1. The short question for consideration in these revisions is whether second suit for declaration of title and permanent injunction is barred under O.9, R.9 of the CPC where an earlier suit for partition was dismissed in default under O.9, R.8 of the CPC.

2. Original plaintiff - Isbati (mother of non - applicant No. 1(a) and(b) herein) filed a suit for declaration of tile and permanent injunction restraining the defendant - Hiralal (father of applicants herein) from interfering with her peaceful possession. The said suit was filed against defendant - Hiralal, who also died during pendency of the suit and his legal heirs were brought on record (applicant herein). The original plaintiff claimed that she is title holder of the suit land and it was encroached by defendant Hiralal, therefore, he be restrained from interfering with possession by way of permanent injunction. Upon summons being served, the applicants herein / defendant therein filed an application under O.7, R.11, Code of Civil Procedure (hereinafter referred to as "CPC") that the plaintiff - Smt. Isbati had previously instituted a suit for declaration of her 1/3rd share in suit property against defendant - Hiralal and his mother Ramhinbai on 28-9-1977, which was dismissed in default for want of plaintiff's appearance on 12-8-87 and no application for setting aside the dismissal of suit was filed and that order has become final and therefore, the subsequently filed suit by the original plaintiff - Isbati is liable to be rejected being barred by law under O.7, R.11, CPC.

3. Upon hearing the parties, the trial Court vide its impugned order dated 30-7-2014 rejected the said application by observing that since the Appellate Court has remanded the case for fresh trial, therefore, it is rejected at this stage.

4. Being aggrieved and dissatisfied with the aforesaid order, Civil Revision No. 98 of 2014 (Thaneshwar and others v. Hemlal and others) was filed. During pendency of this revision, the trial Court framed additional Issue No. 5A by order dated 11-8-2014 whether the suit instituted is barred under S.11(4) read with S.9 of the CPC, if yes, then effect.

5. The trial Court by its order dated 3-3-2015 rejected the said application on the ground that cause of action in both the suits are different and upon death of Ramhin Bai, mother of plaintiff - Ishbati, new cause of action arose for the plaintiff and came to the conclusion that the suit subsequently instituted is neither barred by O.9, R.9 of the CPC nor by principles of res judicata.

6. Questioning the said order, Civil Revision No. 41/2015 has been filed by the defendants (legal representatives of defendant - Hiralal Yadav). Since the question of law in both the revision petitions is common, they are being disposed of by this common order.

7. Shri Sanjay S. Agrawal, learned counsel appearing for defendants in both the revision petitions would submit that learned trial Court has acted illegally in holding that the suit subsequently instituted is not barred by O.9, R.9 of the CPC. He would further submit that the trial Court ought to have seen that in previously instituted suit, the plaintiff has claimed the injunction and ownership of l / 3rd share in the suit property and the second suit is only for declaration of title and permanent injunction and as such, the cause of action in both the suits are one and the same. Therefore, O.9, R.9 of the CPC is squarely attracted and by virtue of that, the instant suit is barred and the plaintiff is precluded for bringing the instant suit based on the same cause of action. He also submits that the trial Court has committed gr