Madras High Court
V.Ponramu vs B.Usharani on 27 June, 2008
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:27/06/2008 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN C.R.P.(PD)(MD)No.284 of 2008 and M.P(MD).No.2 of 2008 V.Ponramu ... Petitioner Vs. 1.B.Usharani 2.M.Shankar 3.K.Baskaran 4.C.Kirubakharan ... Respondents PRAYER Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decreetal order dated 28.12.2006 passed in I.A.No.56 of 2006 in O.S.No.62 of 2005 on the file of Additional Subordinate Judge, Thanjavur. !For Petitioner ... Mr.V.K.Vijayaraghavan ^For Respondents ... Mr.K.Srinivasan :ORDER
***** 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 the earlier suit for default.
11. The suit filed by the revision petitioner in O.S.No.137 of 1994 is admittedly for the purpose of partition. Of course, the suit was dismissed for default, consequent to the non-prosecution of the said suit. However, it cannot be said that by the dismissal of the said suit, the jointness of the property has also come to an end. There was no severance of status between the parties. It was also not the case of the parties that subsequently the property was partitioned between the parties. Partition is nothing but severance of joint status. In a suit for partition, even the defendants are deemed to be in the position of plaintiffs and they could be transposed into plaintiffs. On account of partition, common holding of property give way to individual holding. Unless and until joint ownership is severed, it cannot be said that partition had taken place in the family. A suit for partition stands in an altogether different footing, inasmuch as even a defendant can file an application to transpose himself as plaintiff.
12. In Ramasesha Iyer v. C.V.Ramanujachariar reported in AIR 1935 Madras 458, a Division Bench of this Court considered the effect of dismissal of earlier suit for default in respect of a subsequent suit for partition and held thus:
"The first point is whether the present suit is barred under O.9, R.9 by reason of the former suit. Cases of a second suit for partition may fall under three classes. (1) Where the former suit ended in a final decree, e.g. 3 Bom. L.R.91(1) distinguished in 10 C.W.N.839 (2), cases where there was a preliminary decree but not a final decree example of this are 1915 All.1(3), 33 Cal. 1101(4) and 1918 Mad.751(5). (3) Cases where the suit was dismissed for default. 28 All.627(6).
The case before us falls under the last heading. Following the decisions in 8 All 627(6) and 1926 Mad.1018(7), we hold that the present suit is not barred. The reason is that, even after the dismissal of the former suit, the jointness continues and there is a continuing cause of action."
13. In Rajah v. Maheswara Rao v. Rajah v. Rajeswara Rao reported in 1967(1) MLJ 175, a learned Judge of this Court considered the effect of withdrawal of the suit without liberty in the case of a subsequent partition suit and held thus:
"The question next arises whether the plaintiff should have liberty to bring a fresh suit under Order 23 rule, 1, Civil Procedure Code. So far as a suit for partition or a suit for redemption is concerned, it is axiomatic that, when the plaintiff withdraws his suit, he will be entitled to file a fresh suit as the cause of action is a recurring cause of action. Even if the plaintiff is not granted permission, under Order 23 rule, 1, Civil Procedure Code, he will nevertheless have a right to file a suit for partition at any time he pleases."
14. The learned counsel for the respondents relied on the judgment of a learned Judge of this Court in Dr.S.Jayakumar & another v. K.Kandasamy Gounder reported in 2006(2) LW 259 in support of his contention that subsequent suit on the very same cause of action is not maintainable. However, in the said judgment, the subsequent suit was found to be barred, in view of large number of earlier litigations between the parties which has attained finality. In the present case, admittedly, this is the first comprehensive suit after the dismissal of the earlier suit for partition. It is also an undisputed position that the respondents were not parties to the earlier suit and they were all subsequent purchasers. Therefore, they cannot contend for the position that the decree in the earlier suit for partition dis-entitles the revision petitioner from filing a fresh suit for partition.
15. It is also found from the pleadings that the respondents were aggrieved by the subsequent suit for partition, as they have purchased the property, after the dismissal of the earlier suit. In case the respondents have purchased the share of some other parties, it is always open to them to plead equity by allotment of the property purchased by them to be allotted to the share of their vendor. Such equities could be worked out before the Court below.
16. Therefore, I am of the view that the learned trial Judge was not correct in allowing the application filed under Order 7 Rule 11 of C.P.C. and as such, the order is liable to be set aside and the same is accordingly set aside.
17. In the result, the Civil Revision Petition is allowed by setting aside the order dated 28.12.2006 passed in I.A.No.56 of 2006 in O.S.No.62 of 2005 on the file of Additional Subordinate Judge, Thanjavur. However, in the facts and circumstances of the case, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
SML To The Additional Subordinate Judge, Thanjavur.