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2010 DIGILAW 629 (JK)

Vinod Kumar v. Lalit Kumar

2010-12-16

Hasnain Massodi

body2010
1. The petitioner, aggrieved of the order dated 30th January 2009 of Learned Second Additional District Judge, Jammu, in application under Order 7 Rule 11 CPC, whereby Learned Trial Judge has dismissed the application and declined to reject the plaint, has come up with instant revision petition. 2. Before dilating on the grounds taken up by petitioner in application under Order 7 Rule 11 CPC, to seek rejection of the plaint, it would be advantageous to have closer look at the background, in which present controversy arises. 3. The respondent on 14th July, 2007 brought a suit against the petitioner before the Trial Court for partition by metes and bounds of the property mentioned in the plaint. 4. Briefly stated the respondent's case was that the parties to the suit are real brothers and their father executed a Will on 16th July 1983, whereby property at Muthi and Tringla Batote, was bequeathed in equal shares to the parties; that the property forming subject matter of the suit, however, was left by father of the parties outside scope of the Will and after his demise on 4th January 1999, subject matter of the suit remained joint and unpartitioned between the parties, to be divided in equal shares. The respondent complained that the petitioner, though requested to take steps for partition of the aforesaid property in equal shares, took no steps, constraining the respondent to approach the Court. It was next pleaded that earlier suit brought in the year 2001 by the respondent for partition of the suit property, was allowed to be "dismissed for non-prosecution" by the respondent because of intervention of his mother and promise extended by the petitioner that the suit property would be partitioned without intervention of the court. The respondent pleaded that as the petitioner did not keep the promise and in the meantime mother of the parties also passed away on 24th December 2004, he was left with no option but to institute fresh partition suit. The respondent added to the subject matter of the previous suit instituted in the year 2001, the jewelry and cash lying in their mother's Locker No.231-A, Central Bank of India, Shalimar Road, Jammu and also asked for division of the valuables and cash found in the Locker in equal shares. The respondent added to the subject matter of the previous suit instituted in the year 2001, the jewelry and cash lying in their mother's Locker No.231-A, Central Bank of India, Shalimar Road, Jammu and also asked for division of the valuables and cash found in the Locker in equal shares. The respondent pleading that the petitioner was disputing the Will executed by father of the parties on 16th July 1983, whereby land measuring 08 Kanals 15 Marlas comprising Khasra No.12 at Muthi Jammu, was bequeathed to the respondent, sought a declaratory decree, declaring the respondent exclusive owner of the aforesaid land at Muthi Jammu and entitled to receive its compensation from the Armed Forces, presently in occupation of the land. 5. The petitioner, after he caused appearance before the Trial Court, instead of filling written statement, came up with an application under Order 7 Rule 11 CPC. The petitioner sought rejection of the plaint on the ground that the respondent having allowed suit for partition of house No.1 Mohni Niwas, filed in the year 2001, to be dismissed in default on 12.08.2002, the second suit for partition on the same ground was barred in terms of Order 9 Rule 9 CPC and the plaint liable to be rejected. As regards partition of jewelry and cash, lying in Locker No.231-A, Central Bank of India, Shalimar Road, Jammu, the case set up by the petitioner was that as neither of the parties was aware of the details and description of the jewelry and cash, if any, lying in the Locker, the suit was based on mere speculation and without any cause of action. The petitioner contended that a letter of administration was already granted by the competent court jointly in favour of the parties vide order dated 01.09.2005 (File No.12/Prob) by learned 2nd Additional District Judge Jammu but the Locker was not opened because of non-cooperation on the part of respondent and that the suit for partition of the so-called jewelry was incompetent and without cause of action unless and until the Locker was opened and parties aware of details of jewelry and cash, if any, lying in the Locker. The petitioner pleaded that the suit for partition of the property lying in the Locker, was only maintainable after the parties were aware of nature of the valuables -- jewelry, and amount of money, if any, lying in the Locker. The petitioner pleaded that the suit for partition of the property lying in the Locker, was only maintainable after the parties were aware of nature of the valuables -- jewelry, and amount of money, if any, lying in the Locker. The petitioner, insisting that a suit for division of unseen and unknown property was not maintainable, pleaded that the suit was liable to be rejected in terms of Order 7 Rule 11(a) CPC. The petitioner, adverting to the respondent's case for grant of declaratory decree declaring the respondent exclusive owner of the aforesaid land at Muthi Jammu as also entitled to receive rent from the Armed Forces, in occupation of the land, pleaded that the land was agricultural land and jurisdiction of the court was expressly barred under Land Revenue Act 1996 Svt. and Agrarian Reforms Act 1976. The petitioner further pleaded that the suit was also barred under section 42, Specific Relief Act. 6. The respondent resisted the application on the grounds that the cause of action for partition of joint property was "recurring cause" and dismissal of the suit for non prosecution would not extinguish the cause of action and debar a fresh suit, moreso when the rights of the parties were not adjudicated upon by the court. It was pleaded that mere filing of the written statement by the petitioner would not operate as bar under Order 9 Rule 9 CPC against a fresh suit. The respondent also disputed that the letter of administration of the property, lying in the Locker or the Agrarian Reforms Act in any manner, debars the respondent's suit. 7. Learned Trial Court, not impressed by ground raised in application under Order 7 Rule 11 CPC, rejected the application, observing that partition of joint property was a "recurring cause of action" till the property was partitioned, and therefore, dismissal of suit for non prosecution would not stand in the way of respondent to file a fresh suit. Learned Trial court held that Order 9 Rule 9 CPC was not attracted and that the suit could also not be held to be barred under Order 23 Rule 4 CPC. Learned Trial court held that Order 9 Rule 9 CPC was not attracted and that the suit could also not be held to be barred under Order 23 Rule 4 CPC. The argument that the suit was barred under Agrarian Reforms Act 1976 and Land Revenue Act 1996 and that in wake of issuance of letter of administration, suit as regards partition of jewelry and cash lying in the Locker 231-A Central Bank of India, Shalimar Road, Jammu was also barred, did not find favour with the Learned Trial Court. 8. The Trial Court order, disallowing application under Order 7 Rule 11 CPC, is assailed on the grounds that the order is against facts and law and that the plea raised in the application as also arguments advanced, have not been appreciated in a right perspective. It is contended that the Trial Court rushed to the conclusions, without appreciating that the earlier suit by respondent's own admission made in the plaint, was abandoned by the respondent, deprived respondent of right to institute a fresh suit on the same subject matter. The Trial court is said to have fallen in error of law in holding that the right to partition, giving rise to "recurring cause of action", second suit was competent on the same facts. The petitioner, reiterating the grounds urged in application under Order 7 Rule 11 CPC, insists that the plaint, on bare perusal, was liable to be rejected under Order 7 Rule 11 CPC. 9. Heard and considered. 10. The grounds urged in the revision petition make it imperative to have a closer look on Order 7 Rule 11 (a) and (d), Order 9 Rule 9, Order 23 (1) (4) CPC. Order 7 rule 11 (a) and (d) CPC stipulate: "11. Rejection of plaint The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) XXXXXXX (c) XXXXXXX (d) where the suit appears from the statement in the plaint to be barred by any law." 11. From a bare look at Order 7 Rule 11 (a) & (d) CPC it is evident that a plaint is liable to be rejected, where it does not disclose cause of action as also where the suit, appears from the statement in the plaint, to be barred by law. 12. From a bare look at Order 7 Rule 11 (a) & (d) CPC it is evident that a plaint is liable to be rejected, where it does not disclose cause of action as also where the suit, appears from the statement in the plaint, to be barred by law. 12. In order to see the plaint rejected at its threshold, focus is on Order 9 Rule 9 CPC and Order 23 Rule 1 CPC. The petitioner's case is that, as earlier suit for partition of House No.1, Mohini Niwas, was admittedly dismissed for non prosecution, the second suit on the same cause of action is not maintainable. It is next urged that the respondent, having allowed first suit to be dismissed in default of his appearance, is to be taken to have "abandoned" the suit and in terms of Order 23 Rule 1 (4)(a), the respondent is "precluded from instituting any fresh suit in respect of same subject matter". The line of argument adopted by learned counsel for petitioner renders it necessary to see whether the second suit is brought on the same cause of action, so as to attract Order 9 Rule 9 CPC and also as to whether dismissal in default amounts to "abandonment" within the meaning of Order 23 Rule 1 (4) CPC. 13. It needs no emphasis that dismissal of suit for non prosecution does not operate as resjudicata against subsequent suit. The Court, dismissing a civil suit for non prosecution, does not adjudicate upon rights of the parties and finally decide the lis. The second suit on the same cause of action, on which first suit dismissed for non appearance, was brought, is barred because of express rule of procedure enshrined in Order 9 Rule 9 CPC. The rule, however, is attracted only where the second suit is brought on the same cause of action as the suit dismissed for non-appearance, was brought. In case the second suit, is not filed on the cause of action on which first suit was laid, Order 9 Rule 9 CPC has no application and does not create a bar against second suit. 14. The right to get a joint property partitioned by one of the co-sharers gives rise to "recurring cause of action". In case the second suit, is not filed on the cause of action on which first suit was laid, Order 9 Rule 9 CPC has no application and does not create a bar against second suit. 14. The right to get a joint property partitioned by one of the co-sharers gives rise to "recurring cause of action". The cause of action, as rightly observed by Learned Trial Court, continues till the joint property is not partitioned and co-sharers get their respective shares in such property notwithstanding an earlier action for partition having been left half way. Dismissal of a suit for non prosecution does not extinguish right of a party in joint and unpartitioned property to get his share set apart. The stand as is taken by the petitioner in the present case that dismissal of suit for partition for non appearance debars a fresh suit for partition, even when the property continues to be unpartitioned and joint, if accepted, would lead to erroneous and irrational results. The law on the subject has been summarized by a Division Bench of Punjab High Court in Manohar Lal Behari Lal v. Onkar Das alias Omkar Dass (AIR 1959, Punjab 252) as under:- "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 continues." The principle also finds expression in Asha Sharma and others v. Amar Nath and others (AIR 2002, Himachal Pradesh 32), where the court after scanning law on the subject, held:- "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 it 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." From the above discussions, it follows that dismissal of the suit for partition, for non appearance of respondent, does not operate as a bar against subsequent suit for partition instituted on 14.07.2007. 15. 15. In terms of Order 23 Rule 1(4) CPC, a plaintiff, who abandons his suit, is precluded from instituting any fresh suit in respect of same subject matter or part of such claim. The "abandonment" implies an overt or positive act on the part of plaintiff as against mere omission, signifying his intention to forego, leave or surrender a right or claim, agitated in the suit as against mere failure or omission to prosecute the suit. I hold so because of the placement rule of "abandonment" in the code as also language of Order 23 Rule 1 Sub Rule 4 and 5. The rule of "abandonment" is placed in juxtaposition with "withdrawal and adjustment of suit". Order 23 CPC deals with the cases, where a plaintiff withdraws the suit, abandons the suit or part of the claim or the suit is adjusted. Again Order 23 Rule 1 (4) CPC speaks of "abandonment" of suit or part of a claim. Order 23 Rule 1 Sub Rule 5 restricts the powers of the court to permit one of the plaintiffs to a suit, to abandon a suit or part of a claim, without consent of other plaintiffs. 16. On taking a holistic view of the rule position and all the above factors as also the fact, that "non prosecution" of the suit is taken care of by Order 9 CPC, it becomes clear that failure to prosecute the suit or non appearance on a date of hearing fixed in the suit does not amount to "abandonment" of a suit and debar a fresh suit, moreso when cause of action is recurring. So viewed the petitioner cannot press into service Order 23 Rule 1(4), to see the plaint rejected at the very outset. 17. It needs to be pointed out that `cause of action' is nothing but a bundle of facts that entitles the plaintiff to the reliefs claimed in the suit. If the bundle of facts constituting the cause of action in first suit is same as the bundle of facts constituting the cause of action in the second suit, except for one or more facts, the cause of action in the two suits cannot be taken to be substantially same. The addition of a new set of facts to a bundle of existing facts may change character of the suit, reliefs claimed and nature of suit. 18. The addition of a new set of facts to a bundle of existing facts may change character of the suit, reliefs claimed and nature of suit. 18. The plea that plaint does not disclose cause of action as regards claim for partition of the valuables and cash, lying in the Locker No.231-A, Central Bank of India, Shalimar Road, Jammu, and that the plaint to the said extent must be rejected, does not sound convincing. Mere fact that the parties have been able to get jointly, letter of administration from the competent court, does not stand in the way of either of the parties to determine their rights vis-a-vis the valuables and cash lying in the Locker and apportion it as per shares claimed in the plaint. Again it does not appear from the statement in the plaint that the suit is barred by Agrarian Reforms Act or Land Revenue Act. 19. It needs to be pointed out that when rejection of plaint is sought at an initial stage what the court is required to look at is the plaint and nothing beyond. It is only where suit appears from the statement in the plaint, to be barred by any law that the Court can under Order 7 Rule 11 CPC reject the plaint. The petitioner by insisting that the suit land measuring 08 Kanals 15 Marlas situated at Muthi Tehsil Jammu was agricultural land and that any rights in respect of land were to be determined by the authority under Agrarian Reforms Act, makes a vain effort to agitate the pleas that the petitioner may plead in his written statement and prompt the Trial Court to settle the issues, reflecting such pleas. It needs to be pointed out that in the earlier suit, respondent did neither claim partition of jewelry and whatever is lying in the Locker No.231-A, nor did respondent ask for a declaratory decree declaring the respondent exclusive owner of land measuring 08 Kanals 15 Marlas situated at Muthi Tehsil Jammu and entitled to rent to receive the rent from Armed Forces, in occupation of the land. The cause of action in the second suit thus cannot be said to be restricted to same cause of action, on which first suit was filed. 20. The cause of action in the second suit thus cannot be said to be restricted to same cause of action, on which first suit was filed. 20. For what has been discussed above, there is nothing to even suggest that Learned Trial Judge while passing the order assailed in the revision petition acted in the exercise of jurisdiction illegally or material irregularity or the impugned order to have caused failure of justice. Viewed thus revision petition is without any merit and is accordingly dismissed. 21. Record be sent down.