JUDGMENT : Anil K. Narendran, J. The 3rd plaintiff in O.S.No.28 of 1999 on the file of the Subordinate Judge's Court, Hosdurg, is the appellant in this appeal, which is one filed under Order XLIII Rule 1(c) of the Code of Civil Procedure, 1908, against the order of the said court dated 24.02.2007 in I.A.No.163 of 2005 in O.S.No.28 of 1999. The appellant is the 3rd plaintiff. The said suit is one filed by the appellant along with two others seeking partition of the plaint schedule properties. On 11.02.2005, the suit was dismissed for default. The appellant along with 2 others filed I.A.No.163 of 2005, an application under Order IX Rule 9 of the Code, seeking restoration of that suit. That application was one filed within the period of limitation. By the impugned order dated 24.04.2007, the court below dismissed that interlocutory application. Feeling aggrieved by that order, the appellant-3rd plaintiff is before this Court in this appeal. 2. On 24.10.2007, when this appeal came up for admission, this Court admitted the matter on file. Service of notice could not be completed in this appeal for a considerably long period, since notice issued to some of the respondents returned unserved. Even after taking repeated steps, service of notice could not be completed. Thereafter, by the order dated 02.08.2021 in I.A.No.1 of 2021, the appellant was permitted to take out notice by paper publication to respondents 18, 29, 30, 31, 33, 35, 39, 43, 47, 71 and 75 in Kerala Kaumudi Daily having circulation in Kasaragod District. Pursuant to that order, the appellant has effected service of notice to unserved respondents by paper publication and a copy of that publication has already been received in the concerned Section on 01.09.2021. By a separate order dated this date, Registry was directed to get explanation from the concerned officer, who has not chosen to incorporate that memo in the Judge's papers. Since paper publication has already been effected, service of notice on respondents 18, 29, 30, 31, 33, 35, 39, 43, 47, 71 and 75 is declared as complete. 3. Heard the learned counsel for the appellant-3rd plaintiff, the learned counsel for the 1st respondent, learned counsel for respondents 2, 7, 15 to 17, 19 to 27 and also the learned counsel for the 6th respondent. 4. 3. Heard the learned counsel for the appellant-3rd plaintiff, the learned counsel for the 1st respondent, learned counsel for respondents 2, 7, 15 to 17, 19 to 27 and also the learned counsel for the 6th respondent. 4. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the impugned order dated 24.02.2007 of the Sub Court, Hosdurg, in I.A.No.163 of 2005 in O.S.No.28 of 1999, whereby that application filed under Order IX Rule 9 of the Code of Civil Procedure, for restoration of that suit, which was dismissed for default, stands rejected, for the reasons stated therein. 5. Order IX, Rule 8 of the Code of Civil Procedure deals with procedure where defendant only appears. As per Order IX, Rule 8, where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. 6. Order IX, Rule 8 of the Code of Civil Procedure, 1908 deals with procedure where defendant only appears. As per Order IX, Rule 8, where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. 7. Order IX, Rule 9 of the Code provides that decree against plaintiff by default bars fresh suit. As per sub-rule (1) of Rule 9, where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. 7. Order IX, Rule 9 of the Code provides that decree against plaintiff by default bars fresh suit. As per sub-rule (1) of Rule 9, where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per sub-rule (2) of Rule 9, no order shall be made under this rule unless notice of the application has been served on the opposite party. 8. Order IX, Rule 13 of the Code provides for setting aside decree ex parte against defendant. As per sub-rule (1) of Rule 13, in any case in which a decree is passed ex parte against a defendant, he may apply to the court which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per the first proviso to sub-rule (1), where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. As per the second proviso to sub-rule (1), no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. As per the second proviso to sub-rule (1), no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. As per the Explanation, where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree. 9. In G.P. Srivastava v. R.K. Raizada [ (2000) 3 SCC 54 ] in the context of an application filed under Order IX, Rule 13 of the Code, for setting aside an ex parte decree, the Apex Court held that, the word ‘was prevented by any sufficient cause from appearing’ occurring in Order IX, Rule 13 of the Code must be liberally construed to enable the court to do complete justice between the parties, particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX, Rule 13 of the Code has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. 10. In G.P. Srivastava, the Apex Court held further that, ‘sufficient cause’ for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If ‘sufficient cause’ is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits. 11. In a case where defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits. 11. In Peeves Enterprises v. Muhammed Ashraf [ 2015 (3) KHC 981 ], relying on the law laid down by the Apex Court in G.P. Srivastava, a Division Bench of this Court held that, on an application filed under Order IX, Rule 13 of the Code of Civil Procedure, the court has to find out whether the erring party has made out sufficient cause for setting aside the ex parte decree. When no negligence or inaction is imputable to the erring party and the absence was not mala fide or intentional, the discretion has to be exercised in his favour, especially when the application is within the statutory time limit. In appropriate cases, the plaintiff can be compensated by adequate costs for the loss of time and the inconvenience caused to him. But any such condition shall not be too onerous. 12. Order IX, Rule 9 of the Code of Civil Procedure enables the court to set the dismissal aside, if the plaintiff satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing. On the other hand, Order IX, Rule 13 of the Code enables the court which passed a decree ex parte to set it aside, if the defendant satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. Therefore, the principle laid down by the Apex Court in G.P. Srivastava [ (2000) 3 SCC 54 ], in the context of an application filed under Order IX, Rule 13 of the Code, apply with equal force in the consideration of an application filed under Order IX, Rule 9 of the Code. 13. In Robin Thapa v. Rohit Dora [ (2019) 7 SCC 359 ] the Apex Court held that, ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. 13. In Robin Thapa v. Rohit Dora [ (2019) 7 SCC 359 ] the Apex Court held that, ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that, as far as possible, adjudication be done on merits. 14. In Robin Thapa the Apex Court condoned the delay in filing application under Order IX Rule 13 of the Code of Civil Procedure, 1908, to set aside the ex-parte decree dated 09.10.2014 of Civil Judge, Senior Division, Dehradun. That application was filed on 02.10.2015, which was supported by an application for condonation of delay. The trial court condoned the delay and allowed the application to set aside the ex-parte decree. That order was set aside by the High Court. On the facts of the case, the Apex Court noticed that the appellant came to be served with the notice of the execution proceedings through special messenger on 27.03.2015. Thus, the case of the appellant that he came to know about the passing of the decree only on 17.11.2015 cannot be acted upon. In the execution of the decree, sale deed has been executed in favour of the respondent and it is only thereafter that despite the receipt of the notice dated 27.03.2015, the appellant has set up the case that he came to know about the passing of decree only several months thereafter. Considering the fact that the matter arises from a suit for specific performance, which is undoubtedly a discretionary relief, and since the appellant was prepared to deposit the entire amount spent by the respondent for getting the sale deed executed, the Apex Court found that the interest of justice demands that subject to putting the appellant on terms, he should be given an opportunity to contest a case. Accordingly, the appeal was allowed and the impugned order was set aside subject to the conditions that the appellant will deposit a sum of Rs.67,400/-towards stamp duty and registration charges paid by the respondent, within a period of one month from the date of judgment, in the execution court and a further deposit of Rs.50,000/-as cost to be paid to the respondent. A reading of the judgment of the Apex Court would make it explicitly clear that the Apex Court has taken a lenient view considering the fact that the suit is one for specific performance and also the extent of delay, etc. 15. In Mulla's Code of Civil Procedure, 13th Edition, at page 804, with respect to Order IX, Rule 9 of the Code, the position as to suit for partition is stated thus: "Suits for partition: This rule does not apply to a suit for partition. The reason is that the 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. On the same principle where a suit by a co-sharer, who claims to be in possession, for a declaration of his title is dismissed for default, a second suit by him for partition is not barred under this rule." (underline supplied) 16. In Kannikandath Kizhe Purakkal Velia's son, Thayyan v. Kannikandath Kozhe Purakkal [ AIR 1935 Mad 458 ] the question that came up for consideration before the Division Bench of the Madras High Court was as to whether the second suit for partition was barred under Order IX, Rule 9 of the Code of Civil Procedure, after the dismissal of the former suit for default. The Division Bench, relying on the decisions in Bisheshar Das v. Ram Pershad [(1906) 28 All 627 : 3 ALJ 379 : 1906 AWN 142] and Madhura Gramani v. Sesha Reddy [1926 Mad 1018 : 97 IC 622 : 49 Mad 939] held that the present suit is not barred for the reason that, even after the dismissal of the former suit, the joint ness continues and there is a continuing cause of action. 17. In Babu v. Xavier [1978 (1) KLT 174] the contention raised by the learned counsel for the appellant was that, the bar under Order 9, Rule 9 of the Code of Civil Procedure cannot operate in respect of suits for partition where a continuing cause of action on the basis of the status of jointness as between the plaintiff and defendants can be predicated as the basis of the recurring cause of action. In support of the said contention, the learned counsel for the appellant cited the position as to suit for partition, stated as above in Mulla's Code of Civil Procedure, 13th Edition, at page 804. The Division Bench found that the contention raised by the learned Counsel for the appellant is sound in principle and supported by the decision in Kannikandath Kizhe Purakkal Velia's son, Thayyan [ AIR 1935 Mad 458 ]. 18. Therefore, the bar under Order IX Rule 9 of the Code does not apply in a suit for partition, since the 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. The above principle is supported by the decisions in Kannikandath Kizhe Purakkal Velia's son, Thayyan [ AIR 1935 Mad 458 ] and Babu [1978 (1) KLT 174]. 19. In the instant case, as already noticed hereinbefore, I.A.No.163 of 2005 filed by the appellant along with two others, who are the plaintiffs in O.S.No.28 of 1999, invoking the provisions under Order IX, Rule 9 of the Code, was one filed within the period of limitation. The court below rejected that application on the ground that apart from the interested version in the affidavit sworn to in support of the above interlocutory application, no reliable materials were placed to show that the absence of the plaintiffs, when the suit was listed for trial on 11.02.2005 is on medical grounds. The court below noticed that the reason advanced in the affidavit filed in support of the above interlocutory application and that, stated in the affidavit filed in support of I.A.No.52 of 2005, an application filed along with a medical certificate to remove the suit from the list are self contradictory. Apart from that, other than the medical certificate, no prescription, medical bills, etc., are produced and apart from that the doctor, who had issued that medical certificates, was not examined in order to prove the same. 20. The reasoning of the court below in the impugned order dated 24.02.2007 for rejecting I.A.No.163 of 2005, the application filed by the appellant and two others, invoking the provisions under Order IX, Rule 9 of the Code, seeking restoration of O.S.No.28 of 1999, cannot be sustained in law, in view of the law laid down in the decisions referred to supra. Since the suit is one for partition, the court below ought to have allowed the application for restoration, which was one filed within the period of limitation. When the bar under Order IX, Rule 9 of the Code cannot operate in respect of suits for partition, where a continuing cause of action on the status of jointness as between the plaintiffs and defendants can be predicated as the basis for the recurring cause of action, the court below went wrong in dismissing I.A.No.163 of 2005, for the reasons stated in the order dated 24.02.2007. If the court below was not fully satisfied that there was sufficient cause for the absence of the plaintiffs, instead of dismissing the application for restoration, it could have imposed a reasonable cost on the plaintiffs and decided the lis on merits. 21. In such circumstances, we find no reason to sustain the impugned order dated 24.02.2007 of the Sub Court, Hosdurg in I.A.No.163 of 2005 in O.S.No.28 of 1999 and that order is set aside, thereby allowing I.A.No.163 of 2005 and restoring O.S.No.28 of 1999 to file. 22. Since the suit is of the year 1999, the Sub Court shall dispose of O.S.No.28 of 1999, as expeditiously as possible, at any rate, within a period of six months, if there are no legal impediments. Both parties shall appear before the Sub Court, Hosdurg on 20.09.2021.