CR No.4010 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH ***** CR No.4010 of 2010 (O & M) Date of decision : 24.3.2011 Raghbir Singh (deceased) through LRs ........ Petitioner Vs. Om Prakash and others .........Respondents CORAM : HON'BLE MR. JUSTICE A.N.JINDAL Present:- Mr.N.C.Kinra, Advocate, and Mr.Harsh Kinra, Advocate, for the petitioner Mr.H.S.Hooda, Senior Advocate, with Mr.Rajiv Kumar Saini, Advocate, for the respondents --- A.N.JINDAL, J (Oral) : This revision petition has arisen out of the order dated 26.4.2010 (Annexure P-10), passed by the Additional District Judge, Jind, dismissing the appeal of the petitioner against the order dated 30.4.2009 (Annexure P-9), passed by the trial Court, rejecting the plaint under Order 7 Rule 11(d) and Order 23 Rule 1 (4) of the CPC. The crucial question to be determined in this petition is “whether in view of the earlier suit for partition, having been dismissed in view of the compromise, the second suit, filed by the petitioner for partition, could be maintained?” The factual background of the case is that on 16.8.1984 Raghbir Singh-petitioner had filed a suit for declaration to the effect that he is entitled to get the property partitioned, as shown in the site plan appended to that plaint, situated in the revenue estate of village Julana, which was decreed vide judgement dated 17.10.1985 (Annexure P-2) against the defendants-respondents. On CR No.4010 of 2010 (O & M) -2- 15.11.1985 the respondents preferred an appeal. However, during the pendency of the appeal, the dispute was compromised on 7.5.1986 and the first Appellate Court accepted the appeal of the respondents and dismissed the suit as compromised on 5.6.1986 (Annexure P-5) but the compromise was not made a part of the decree. It has been averred that the compromise could not be implemented thus the matter regarding the respective possession in terms of the said compromise could not be settled between the petitioner and his brothers i.e. Om Prakash-respondent No.1, Sh.Ram Partap-respondent No.2 and late Sh. Baij Nath, who is represented by his legal representatives. As a sequel of it, the petitioner had to file another suit for partition on 28.8.2004. The respondents filed written statement contesting the suit on the ground that suit properties are no more joint of the parties and the partition had already taken place. They also moved an application on 7.1.2005 for rejecting the plaint under Order 7 Rule 11(d) and Order 23 Rule 1 (4) of the CPC. The petitioner contested the application while pleading that the aforesaid provisions are not applicable to his case. The Civil Judge (Junior Division), Jind dismissed the application of the respondents on 15.4.2005. The Civil Revision No.3266 of 2006, challenging the aforesaid order, was decided by this Court vide order dated 11.2.2008, whereby Court was pleased to direct the trial Court to decide the application afresh. Thereafter, vide impugned order dated 30.4.2009 Annexure P- 9, the trial Court allowed the application and rejected the plaint. The appeal preferred by the petitioner, before the first Appellate Court, was also dismissed on 26.4.2010. Arguments heard. Record perused. The filing of the earlier litigation, the existence of the compromise dated 7.5.1986, as also the dismissal of the suit of the petitioner, on account of CR No.4010 of 2010 (O & M) -3- compromise, are not in dispute between the parties. The petitioner by filing the present suit has specifically pleaded that though the appeal as well as the suit were decided, on the basis of the compromise/family settlement between the parties, yet the said family settlement/compromise has not been acted upon and the suit property still remains joint in the name of the parties. On the other hand, respondents have claimed that the second (i.e.present) suit is not maintainable, in view of the earlier suit having been dismissed. Nothing has been averred with regard to the implementing of the previous compromise. The previous compromise having not been made part of the decree, had no force to be implemented. Still it is a mixed question of fact and law whether compromise, entered into between the parties, has any legal sanction, valid and admissible for want of registration. No prima facie proof with regard to the implementation of the compromise has been brought on record, by the respondents in order to indicate that partition has already taken place between the parties. The crux is that the question, whether the property is joint of the parties or has already been partitioned, is to be decided after collecting the evidence of both the parties. Now coming to the question whether the suit is barred by Order 23 Rule 1(4) CPC and as a result of which the plaint is to be rejected. In this regard Order 7 Rule 11 (d) of CPC is reproduced as under - “Rejection of plaint -The plaint shall be rejected in the following case :- (a) to (c) xxxxx (d) where the suit appears from the statement in the plaint to be barred by any law” Now I need to reproduce the relevant provisions of Order 23 CPC with regard to the bar of the suits in case of withdrawal of earlier suit. Order 23 Rule 1 sub rule (4) reads as under - CR No.4010 of 2010 (O & M) -4- “XXIII - WITHDRAWAL AND ADJUSTMENT OF SUITS 1. Withdrawal of suit or abandonment of part of claim- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) and (3) xxxx xxxx xxxx (4) Where the plaintiff - (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.” The Order 23 refers to two kinds of withdrawal of the suits namely; (i) Absolute withdrawals and (ii) withdrawal with the permission of the Court to institute a fresh suit on the same cause of action. The first category of withdrawal is governed by sub rule (1) and the second category is governed by sub rule (3) of Order 23 Rule 1 CPC. Now coming to the facts of the present case. It is the specific case of the petitioner that he had filed a suit for partition wherein compromise was effected at the appropriate stage and in view of the said compromise, the petition was allowed and the appeal of the respondents was accepted and the suit for partition was dismissed. However, since compromise could not be acted upon or implemented, therefore, cause of action arose to him to file the present suit. In such circumstances and in view of the admitted legal position, in view of the specific CR No.4010 of 2010 (O & M) -5- averments that the respondents failed to effect the compromise, the property remained joint and he had to file the suit for partition again indicates that a new cause of action arose to him to file this present suit for partition. As such, the suit cannot be said to have been filed against the respondents on the same cause of action. As such, in the given circumstances of the case, no permission to file the suit, was required. It is also well settled that right of partition is a reckoning right. If the plaintiff pleads that the property has not been partitioned so far , then Court has to see only the averments made in the plaint and is not required to see the evidence or any document which is filed to raise the petition. Therefore, in such situation, the suit cannot be said to be bad on the ground that there was a compromise between the parties earlier. Similar question arise in Keesari Santamma v. Kanumatha Reddi Venkatarama Reddi and others, AIR 1935 Madras 909' wherein it was observed that dismissal of a suit for partition on the ground of compromise and where the defendant failed to carry out the compromise then the subsequent suit for partition of the same property is not barred even though no permission to bring fresh suit has been obtained. It was further observed - “The proposition of law established by these cases is that, with respect to the application of Order 23 Rule 1 CPC, a suit for partition should be treated differently, and that a subsequent suit for partition of the same property involved in the previous suit is not barred under Order 23 Rule 1 by the dismissal of the previous suit, even though no permission to institute a fresh suit was obtained when the previous suit was dismissed on the ground of compromise, the reason being as mentioned in 37 All 155 (1), that the right to bring a suit for partition unlike other suits is a continuing right, and as soon as the defendant failed to carry out the compromise, the parties are relegated to their rights as they existed prior to the compromise; if this principle CR No.4010 of 2010 (O & M) -6- is given effect to the appellant should succeed, especially so, having regard to the fact that the withdrawal of the previous suit was even before the defendants had notice through Court. It is very doubtful whether the prohibition contained in Order 23 Rule 1 CPC can apply to cases where both the parties are not before Court. However, that may be, if the Allahabad decisions lay down the correct law, the dismissal of the previous suit in the case before us cannot operate as a bar to the plaintiff's suit. In this connection I may also state the decision in 10 CWN 839 (5), relied on in 37 All 155 (1) is referred to with approval in 49 Mad 939 (7) wherein it is stated that a right to partition is a right which accrues from time to time and the principle on which the decision in 37 All 155 (1) is based.” In the instant case the suit was withdrawn at the instance of the respondents when a valid decree was already in favour of the petitioner. The withdrawal was conditioned that the parties would act upon the compromise but the said compromise was not implemented. Consequently, parties would be relegated to their rights as they existed prior to the compromise. Furthermore, on non-compliance of the previous compromise, fresh cause of action accrued to the petitioner to file the suit. Therefore, in these circumstances, the bar created by Order 23 Rule 1(4) would not be attracted and the suit would be maintainable. Resultantly, this petition is accepted, the impugned order is set aside and the trial Court is directed to proceed in accordance with law. (A.N.JINDAL) JUDGE 24.3.2011 akm