JUDGMENT Kuldip Chand Sood, J.:—The substantial question of law which calls for answer is : "Whether second suit for partition is precluded under Order 9 Rule 9 of the Code of Civil Procedure where an earlier suit for partition was dismissed in default under Order 9 Rule 8 of the Code of Civil Procedure?" 2. In order to appreciate controversy, few facts may be noticed : Prabha Ram, Sant Ram, Relu Ram and Brahm Dass were sons of one Lakhoo Ram. In November, 1981 Sant Ram and Prabha Ram laid a suit before the trial Court for partition and separate possession of a three storeyed building situate in Khasra No. 264 at Lower Bazar, Solan, in the District Solan, claiming that plaintiffs Sant Ram and Prabha Ram had l/4th share each and the defendants Relu Ram and legal heirs of Braham Dass, the defendants, had also l/4th share each in this property. The plaintiffs wanted to separate and wanted that property should be partitioned. This suit was resisted by the defendants. However, the suit was dismissed in default on 2nd July, 1984 under Order 9 Rule 8 of the Code of Civil Procedure. It appears that an application for restoration of the suit was filed by the plaintiffs on 7th July, 1984. This application was withdrawn and dismissed, as such, on 19th June, 1985. 3. Plaintiffs, respondents herein, filed another suit for partition of the property in dispute on 21st September, 1985 on the similar grounds against the legal heirs of Relu Ram and Brahm Dass, hereinafter referred to as the defendants, claiming that the plaintiffs were the owners in possession to the extent of l/4th share each and legal heirs of Braham Dass and Relu Ram also to the extent of l/4th share respectively. 4. The suit was resisted. Allegations were controverted. An objection was taken that suit was not maintainable in view of the principle of res judicata as an earlier suit filed by the plaintiffs for partition was dismissed after settlement of the issues and the application for the restoration of that suit was too dismissed. 4. The suit was resisted. Allegations were controverted. An objection was taken that suit was not maintainable in view of the principle of res judicata as an earlier suit filed by the plaintiffs for partition was dismissed after settlement of the issues and the application for the restoration of that suit was too dismissed. Learned trial Judge under Issue No. 3 held that the suit was not barred by the principle of res judicata as well under Order 9 Rule 9 of the Code of Civil Procedure as cause of action for a suit for partition is "recurring one", therefore, provisions of Order 9 Rule 9 of the Code of Civil Procedure would not apply in the case. On merits it was held that plaintiffs were not proved to be joint owners of the suit property to the extent of half share as claimed by the plaintiffs. The suit was, accordingly, dismissed. 5. Dis-satisfied, plaintiffs carried an appeal before the learned District Judge, Solan. This appeal was allowed by the learned Additional District Judge, Solan, on 24th June, 1994. The first appellate Court held that appellants and proforma respondents in the Civil Appeal were co-owners in the suit property to the extent of half share and were entitled for separate possession and partition. However, keeping in view the nature of the property, it was not found convenient to divide the property in equal share. The learned Additional District Judge decreed that the property be put to public auction and half of the sale proceeds be given to the plaintiffs and the other half to the respondents in equal share. 6. Aggrieved, the defendants have approached this Court in Regular Second Appeal. The appeal was admitted on 8th November, 1994 on the following substantial questions of law: (1) Whether the suit is barred by the principle of res judicata? (2) Whether the learned lower appellate Court erred in law in accepting the additional evidence? 7. So far the question of suit being barred by principle of res judicata is concerned, such principles are not attracted in the present case. (2) Whether the learned lower appellate Court erred in law in accepting the additional evidence? 7. So far the question of suit being barred by principle of res judicata is concerned, such principles are not attracted in the present case. There is no scope of dispute that an order made under Order 9 Rule 8 of the Code of Civil Procedure would not amount to res judicata, as such, a suit cannot be said to have been heard and finally decided by the order of dismissal made for the non-appearance of the plaintiffs under Order 9 Rule 8 of the Code. The only effect of an order made under Order 9 Rule 8 is that a fresh suit based on the same cause of action is precluded by the provisions of Order 9 Rule 9 of the Code. The question, in the circumstances, is whether the second suit for partition filed by the plaintiffs is not maintainable in view of the bar created under Order 9 Rule 9 of the Code. 8. So far the question, whether appellate Court erred in law in accepting the additional evidence, is concerned, it is noticed that the additional evidence was permitted to be led by the learned District Judge on the concession made by the defendants. 9. The order dated 31st July, 1992 of learned District Judge reads: "31.7.1992 Present : Shri K.L. Gupta, Adv., for the appellant. Shri R.K. Garg, Advocate, for respondents. Reply filed, learned Counsel for the respondents have no objections to the applications under Order 41 Rule 27 CPC and under Section. 65 Evidence Act. The same are allowed subject to costs of Rs. 220. For additional evidence to come up on 26.8.1992." 10. I have heard learned Counsel for the parties in second appeal and gone through the record. 11. In the facts and circumstances noticed above, it is not open to the defendant-appellants to challenge the order permitting the plaintiffs to lead additional evidence under Order 41 Rule 27 of the Code Civil Procedure. This question does not survive. 12. I have heard learned Counsel for the parties in second appeal and gone through the record. 11. In the facts and circumstances noticed above, it is not open to the defendant-appellants to challenge the order permitting the plaintiffs to lead additional evidence under Order 41 Rule 27 of the Code Civil Procedure. This question does not survive. 12. Rule 8 of Order 9 of the Code provides for the dismissal of the suit where the defendant appears and the plaintiff does not make appearance when the suit is called for hearing unless, of course, the defendant admits the claim, or part thereof, in which case the Court has to pass a decree against the defendant upon such admission. 13. Rule 9 of Order 9 of the Code provides for the restoration of the suit dismissed under Rule 8 for non-appearance. The Rule mandates that where a suit is dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. 14. It may be noticed that where the plaintiff fails to appear and the suit is dismissed in default under Rule 8 of Order 9, he is precluded from filing a fresh suit in respect of the same cause of action. The bar under Order 9 Rule 9 would not apply unless the causes of action are identical in substance. 15. Rule 9 of Order 9 is based on sound public policy that no defendant should be vexed twice on the same cause of action. 16. It will also not apply to the cases where the cause of action is recurring or continuous. The right to enforce partition is a legal incident of a joint tenancy, and so long such tenancy subsists, a party has a continuous right for partition. 17. In Nasarat-ullah v. Mujib-ullah, (1) 1891 ILR 13 All. 309, principle was laid that so long the property is jointly held, so long does a right of partition continuous. This principle was reiterated in Bisheshar Das and another v. Ram Prasad and another, 1906 ILR All 627. In that case plaintiffs and defendants were members of Joint Hindu family. The plaintiffs filed a suit for partition of the joint assets. The suit was dismissed in default. The plaintiffs brought a fresh suit for partition of the assets. The trial Court dismissed the suit. In that case plaintiffs and defendants were members of Joint Hindu family. The plaintiffs filed a suit for partition of the joint assets. The suit was dismissed in default. The plaintiffs brought a fresh suit for partition of the assets. The trial Court dismissed the suit. However, the first appellate Court held that the second suit was barred, as the former suit was regularly dismissed and the remedy was only by way of an appeal. 18. A Division Bench of Allahabad High Court, in this background, held : "As it appears to us, the right to enforce partition is a legal incident of a joint tenancy, and so long as such tenancy subsists so long may any of the joint tenants apply to the Court for partition of the joint property". 19. In Madhura Gramani v. Thumala Sesha Reddy and others, 1926 ILR Madras Series page 929, a suit for partition of certain property in which plaintiff claimed 3/4th share was dismissed in default under Order 9 Rule 8 of the Code. A second suit was brought for partition. It was contended that the second suit for partition was barred under Rule 9 of Order 9. 20. The learned Judges in appeal held : "In the present case, when the suit of the plaintiffs assignor was dismissed in 1917 she was relegated to her right of possession as joint owner and consequently to her right to partition, a right which accrues from time to time, for this right had not been taken away by the prior litigation". 21. In Mukha Singh and others v. Ramchariter Singh and others, AIR 1956 Patna 143, plaintiff, who was a co-sharer in certain lands, brought a suit for declaration of his title and confirmation of possession and, in the alternative, for possession on the allegation that a cloud was cast on his title by the rejection of his prayer for mutation by the Land Registration Deputy Collector. This suit was dismissed under Order 9 Rule 8 of the Code of Civil Procedure for non appearance of the plaintiff. The plaintiff subsequently brought a suit for partition of his share in the land on the ground that he was finding it difficult to manage the land alongwith his co-sharers. 22. This suit was dismissed under Order 9 Rule 8 of the Code of Civil Procedure for non appearance of the plaintiff. The plaintiff subsequently brought a suit for partition of his share in the land on the ground that he was finding it difficult to manage the land alongwith his co-sharers. 22. A Single Judge of the Patna High Court held that the subsequent suit for partition was not barred by the provisions of Order 9 Rule 9 as cause of action for partition suit is recurring one and therefore, the bar under Order 9 Rule 9 will not operate in the case of partition suits of the same property. 23. In Manohar Lal Behari Lal v. Onkar Das alias Omkar Dass and. others, AIR 1959 Punjab 252, A Division Bench of Punjab High Court construing the provisions of Order 9 Rule 8 and Order 9 Rule 9 of the Code observed: "A suit for partition dismissed for default under Order 9 Rule 9 of the Code of Civil Procedure does not bar a subsequent suit for partition. The reason is that the right to enforce a partition is a continuous right which is a legal incident of a joint tenancy and which ensures so long as the joint tenancy continuous". 24. Mr. Aneesh Garg contends, with considerable tenacity, that even if it be assumed that the cause of action in partition suit is recurring then it has to be shown by the plaintiff that something happened between the dismissal of the suit in default and laying of the fresh suit which gave cause of action to the plaintiff. He refers to the Law of Lexicon by Justice M.C. Desai, Volume-II, to impress that "Recurring" means a happening again and again and not that which occurs only once. The argument is misplaced and cannot be accepted. 25. I have already observed that cause of action is continuous in partition cases which subsists so long the property is held jointly. In other words, the joint owner can file a suit for partition until partition is actually effected irrespective of the fact whether earlier suits for such partition were dismissed in default or an earlier decree for partition was not acted upon. 26. Mr. In other words, the joint owner can file a suit for partition until partition is actually effected irrespective of the fact whether earlier suits for such partition were dismissed in default or an earlier decree for partition was not acted upon. 26. Mr. Garg also refers to M/s. Bengal Waterproof Limited v. M/s. Bombay Waterproof Manufacturing Company and others, AIR 1997 SC1398; K.S. Sundararaju Chettiar v. M.R. Ramachandra Naidu, (1994) 5 SCC 14 and N.R. Narayan Swamy v. B. Francis Jagan, (2001) 6 SCC 473. The ratio of these authorities is neither of any assistance to the petitioners nor are applicable in the facts of the present case. 27. Mr. G.D. Verma, learned Senior Counsel for the respondents, refers to Sadhu Singh v. Kaur Singh, 1992 (1) Recent Revenue Reports (Punjab and Haryana) page 444 and Ranjit Singh v. Gurnam Singh, 1998 (4) Recent Revenue Reports (Civil) (Punjab and Haryana) Page 528 and submits that cause of action in partition cases is continuous and therefore, second suit, is not barred under Order 9 Rule 9 of the Code. 28. In Sadhu Singh the principle that right to enforce partition is a legal incident of a joint tenancy and as long as such tenancy subsists, any of the joint tenants may sue for partition of the joint property was reiterated. 29. In Ranjit Singh it was held that where the cause of action was continuous the second suit would not be barred under Order 9 Rule 9 of the Code of Civil Procedure. 30. In the facts and circumstances of this case, the subsequent suit for enforcing partition in the face of first suit for the same relief having been dismissed in default under Order 9 Rule 8 of the Code of Civil Procedure is not precluded by the provisions of Order 9 Rule 9 of the Code. The question is, accordingly, answered. 31. In result, the appeal fails and is dismissed. However, there will be no order as to costs.