Indian Kanoon - Search engine for Indian Law

Orissa High Court

Tusagra Pruseth & Another vs Chudamani Pruseth & Others ... Opposite ... on 26 March, 2025

                 ORISSA HIGH COURT : CUTTACK

                      C.R.P. No.15 of 2024

    An application under Section 115 of the Code of Civil
                     Procedure, 1908.



                               ***

Tusagra Pruseth & Another ... Petitioners.

-VERSUS-

Chudamani Pruseth & Others ... Opposite Parties. Counsel appeared for the parties:

For the Petitioners : Mr. N.C. Rout, Advocate.

For the Opposite Parties : Mr. P.K. Satapathy, Adv. O.P No.1.

Mr. T.K. Mishra, Adv. O.P. No.2.

P R E S E N T:

HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Date of Hearing: 20.03.2025 :: Date of Judgment : 26.03.2025 CRP No.15 of 2024 Page 1 of 8 ANANDA CHANDRA BEHERA, J.--

1. This revision under Section 115 of the CPC, 1908 has been filed by the petitioners (defendants in the suit vide C.S. No.166 of 2022) against the Opposite Parties (plaintiffs in the suit vide C.S. No.166 of 2022) challenging an order of rejection to their petition for disposing of the suit vide C.S. No.166 of 2022 on a preliminary issue on the point of the maintainability of that suit on the ground of withdrawal of earlier suit for partition vide C.S. No.4 of 2018 by the plaintiff (Opp. Party No.1 in this revision) passed on dated 01.03.2024 by the learned Trial Court i.e. learned Sr. Civil Judge, Kuchinda.

2. I have already heard from the learned counsels of both the sides.

3. In order to assail the impugned order, the learned counsel for the petitioners (defendants in the suit vide C.S. No.166 of 2022) relied upon the following decisions:

I. In a case between Sathyanath & Another Vs. Sarojamani reported in (2022) 7 SCC 644. II. In a case between Sitaram & Others Vs. Antaryami Mohapatra reported in 96 (2003) CLT 762.

On the contrary in support of the impugned order the learned counsel for the Opp. Party No.1 (plaintiff in the suit vide C.S. No.166 of 2022) relied upon the following decisions:

I. In a case between Shiv Shakti Coop. Housing Society, Nagpur Vrs. M/s. Swaraj Developers & Others reported in AIR (SC) 2003 Page-2434. II. In a case between Sitaram @ Mahendra Ghosh Vrs. Sri Antaryami Mohapatra & 18 others reported in 2003 (2) OLR 409.

III. In a case between Radhanath Jena Vrs.

Jadunath Jena & Others reported in 2000 OLR (II) Page-510.

IV. In a case between Satyanath & Another Vs. Sarojamani reported in AIR 2022 (SC) 2242.

4. The learned Trial Court has rejected the petition of the defendants for disposing of the suit vide C.S. No.166 of 2022 of the plaintiff on a preliminary issue on the ground of its non- maintainability for the withdrawal of earlier suit for partition of the plaintiff vide C.S. No.4 of 2018 for the same properties as per Order dated 01.03.2024 assigning the reasons that, "to end the litigation, issues are already framed in the present suit vide C.S. No.166 of 2022 filed by the plaintiff for partition, for which, whether the suit is maintainable or not shall be decided after final hearing of the suit. Therefore, the question of deciding the suit on a preliminary issue as sought for by the CRP No.15 of 2024 Page 3 of 8 defendants does not arise. Therefore, the petition of the defendants stand rejected".

5. It is the settled propositions of law that, High Court cannot interfere with an impugned order in a civil revision, when either by such impugned order, the suit has not been finally disposed of or if such impugned order shall allow to stand, the same would occasion in failure of justice or shall cause irreparable injury to the party against whom the impugned order is passed.

6. Here in this revision at hand, the impugned order dated 01.03.2024 passed by the learned trial court in the suit vide C.S. No.166 of 2022 rejecting the petition of the defendants (petitioners in this revision) for the disposal of that suit on a preliminary issue does not amount to the final disposal of that pending suit for partition vide C.S.No.166 of 2022.

There is also no material in the record to show that, due to the rejection of the petition of the defendants through the impugned order, there is any failure of justice. Rather the final adjudication of that suit for partition vide C.S. No.166 of 2022 shall be in furtherance of rendering substantial justice to the CRP No.15 of 2024 Page 4 of 8 parties. Because, the suit properties have not been divided/partitioned between the parties through metes and bounds partition.

For which, this revision filed by the petitioners (defendants in the suit vide C.S. No.166 of 2022) is not entertainable under law.

The propositions of law has already been settled that, withdrawal of a suit for partition without obtaining permission for filing an another suit for partition by the same plaintiff for the same properties shall never preclude/debar the plaintiff from filing a fresh suit for partition for the same suit properties. Because, cause of action in every suit for partition is recurring one.

7. On this aspect the proposition of law has already been clarified by the Hon'ble Courts in the ratio of the following decisions:

I. Mukha Singh & Others vs. Ramchariter Singh & others reported in AIR 1956 (Pat.) 143, Madhura Gramani Vs. Thummala Sesha Reddi & Others reported in AIR 1926 (Mad.) 1018 & Kannikandath Kizhe Purakkal Vella's Son, Thayyan Vs. Kannikandath Kizhe Purakkal reported in AIR 1935 (Mad.) 458 that, in a suit for partition, the cause of action is a recurring one.

Unless and until the joint properties are divided/partitioned through metes and bounds partition, a fresh suit for partition is maintainable even after the decision made in the previous suit for partition, as the right to partition is a right accruing from time to time and there is a continuing cause of action till the continuance of jointness in the suit properties.

II. Hari Basudev Vs. State of Orissa & Another reported in AIR 2000 (Ori.) 125 that, no specific order granting liberty to institute fresh case was passed. However, in petition for withdrawal, petitioner sought to reserve his right to file fresh case. Held, in circumstances, permission to file fresh case could be said to be impliedly granted in withdrawal order. Hence, subsequent election petition in respect of same matter is maintainable. (Para Nos.6 & 7) III. Devdutt vs. Shasi Verma & Others reported in 2021 (3) Civ.C.C. 412 (Chh) that, withdrawal of suit for partition without obtaining permission for filing a fresh suit. The plaintiff is not debarred from filing a fresh suit for partition, as cause of action for filing suit for partition is recurring one. (Para Nos.11 & 13)

8. Here in this revision at hand, when the present suit vide C.S. No.166 of 2022 is a suit for partition and when as per law, withdrawal of an earlier suit for partition by the same plaintiff shall not preclude/debar him/her from filing a fresh suit for partition in respect of the same properties like the present suit at hand vide C.S. No.166 of 2022 and when certified copy of the application for withdrawal of the previous suit vide C.S.No.4 of 2018 was not filed by the defendants (petitioners in this CRP No.15 of 2024 Page 6 of 8 revision) for perusal of the trial court in order to ascertain, whether the plaintiff had filed that petition for withdrawal in the previous suit vide C.S. No.4 of 2018 reserving his right to file a fresh suit or not and when the issues have already been framed in the present suit vide C.S. No.166 of 2022 including one issue therein regarding the maintainability of the suit on the ground of withdrawal of the earlier suit vide C.S. No.4 of 2018 and when in view of the ratio of the decisions referred to supra in Para No.7 of this Judgment, withdrawal of the previous suit for partition vide C.S. No.4 of 2018 by the plaintiff shall not be a bar for the maintainability of the 2nd Suit for partition vide C.S. No.166 of 2022, as the cause of action in the suit for partition is recurring one, because, the right to partition is a right occurring from time to time and there is a continuing cause of action till the continuance of the jointness of the properties, then, at this juncture, the impugned order dated 01.03.2024 passed by the learned Trial Court in C.S. No.166 of 2022 rejecting the petition of the petitioners (defendants) cannot be held as erroneous.

CRP No.15 of 2024 Page 7 of 8

So, the decisions relied upon by the petitioners (defendants) indicated in Para No.3 of this Judgment are not applicable to this revision on facts and law as discussed above.

For which, the question of interfering with the impugned order passed by the Trial Court through this revision filed by the petitioners (defendants) does not arise.

9. Therefore, there is no merit in the revision of the petitioners (defendants in the suit vide C.S. No.166 of 2022). The same must fail.

10. In result, the revision filed by the petitioners (defendants in the suit vide C.S. No.166 of 2022) is dismissed on contest, but without cost.

11. Accordingly, the revision is disposed of finally.

(ANANDA CHANDRA BEHERA) JUDGE High Court of Orissa, Cuttack The 26 .03. 2025// Rati Ranjan Nayak Sr. Stenographer Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 28-Mar-2025 15:43:57 CRP No.15 of 2024 Page 8 of 8