The court affirmed that a subsequent suit for partition is not barred by res judicata or limitation if it arises from a distinct cause of action, even if related to a previous suit involving the same parties.

1. This judgment shall decide the present civil revision petition filed by the petitioners under Section 115 of the Civil Procedure Code , 19081, assailing the impugned order dated 15.11.2018 passed by the learned Additional Sessions Judge, Tis Hazari Courts, Delhi2, in CS No. 10265/2016, whereby the respondent‘s/petitioner‘s application under Order VII Rule 11, CPC and application under Order XII Rule 6 were dismissed.

FACTUAL BACKGROUND:

2. Briefly stated, the present revision petition has been filed by the 1 CPC 2 Trial Court revisionist/defendant, Gaurav Mangla, who is the eldest son from the first wife (deceased) of Late Harish Chandra Mangla, who died intestate on 29th November, 1986, leaving behind the petitioners and the defendants as the legal heirs. Defendant No.1 is the third wife and defendants No.2 to 4 are the children/sons from the second wife (deceased). It would be expedient to reproduce the family tree, which goes as under:

3. Shorn of unnecessary details, the respondent No.1/plaintiff Rohit had filed a suit for permanent injunction, bearing suit No.155/1987 titled as 'Rohit Mangla Vs. Usha Mangla & Ors.3, which was in respect of monies and dues of the said Late H.C Mangla with LIC India and Delhi Electric Supply Undertaking4, wherein a compromise deed was entered into between the parties on 05.02.1988. As per the compromise deed executed between Rohit Mangla and 3 Injunction suit 4 DESU Late Sh. H.C. Mangla (died intestate on 29.11.1986) I wife Late Smt. Manjula II wife Late Smt. Sudha III wife Late Smt. Usha mangla Rohit (Eldest son) - Plaintiff Bhupesh – Defendant No.2 Vivek – Defendant No.3 Gaurav-Defendant No.4 Defendant No.1 Usha Mangla, Bhupesh, Vivek and master Gaurav Mangla (through his step-mother Usha Mangla), respondent/petitioner (Rohit) was acknowledged as one of the legal heirs and it was stipulated that he will get 1/5th share in movable and immovable properties left behind by the deceased Sh. H.C. Mangla. The relevant clause of the said agreement is reproduced as under:

―3. WHEREAS the first party is entitled to the assets both movable and immovable to the extent of one fifth (l/5th) share, the second party agrees and promises to pay / deliver the first party one fifth (l/5th) of the movable and immovable assets of the deceased.‖

4. Needless to state, the said suit bearing no. 155/87 was dismissed as compromised and the application under Order XXIII Rule 1 CPC filed by respondent/plaintiff was allowed vide order dated 11.02.1988 of the Court, in terms whereof the said injunction suit was dismissed as unconditionally withdrawn, without seeking any liberty to file or institute any suit on the same cause of action, whatsoever, in the future.

5. The grievance of the petitioners is that respondent no. 1/ plaintiff is re-agitating the disputes which were settled pursuant to the aforementioned compromise and now has filed a suit for partition, possession, permanent injunction and rendition of accounts being CS(OS) No.146 of 1995 (185/2011) titled ‘Rohit Mangla vs. Usha Mangla & ors.’ 5 before the Hon‘ble High court (later transferred to Tis Hazari Courts for the change in pecuniary jurisdiction).

6. It is pertinent to mention that in the earlier matter, the parties 5 Partition suit arrived at a Settlement in terms whereof the petitioner/defendant No.2 agreed to transfer USD 500,000/- to the respondent/plaintiff (Rohit) for the settlement of property disputes between parties and in lieu whereof the respondent/plaintiff would withdraw the said suit.

PROCEEDINGS BEFORE THE LEARNED TRIAL COURT:

7. In the said background, the petitioners/ defendants filed an application under Order VII Rule 11 CPC challenging the maintainability of the suit on the following grounds:

―a) That present suit is hit by res-judicata.

b) That present suit is hit by Order II Rule 2 CPC.

c) That present suit is also barred by limitation as the same is filed several years after the earlier suit, without any fre