IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.465 of 2006 RAM KRISHNA THAKUR, SON OF LATE BASUDEO THAKUR, RESIDENT OF VILLAGE-BAROHIA, P.S. CHANPATIA, P.O. CHAUBEY TOLA, DISTRICT-WEST CHAMPARAN. ………………………………PLAINTIFF..APPELLANT-PETITIONER. Versus 1. OM PRAKASH THAKUR, SON OF LATE DAROGA THAKUR. 2. BHUP NARAIN THAKUR. 3. JATA SHANKAR THAKUR. BOTH ARE SONS OF LATE SHEOJI THAKUR. 4. EKBALI THAKUR. SON OF LATE RAGHUNATH THAKUR. ALL ARE RESIDENT OF VILLAGE-BAROHIA, P.O. CHAUBEY TOLA, P.S. CHANPATIA, DISTRICT-WEST CHAMPARAN. …………………………………………………………...DEFENDANTS.. …….RESPONDENTS..OPPOSITE PARTIES..OPPOSITE PARTIES. ----------- For the Petitioner : M/s. Kamal Nayan Chaubey, Senior Advocate and Akhilesh Kumar Shrivastava, Advocate. For the Opposite Parties : M/s. Bindhyachal Singh and Sushil Kumar Singh, Advocates. ------------- 12. 28.10.2009. I.A. No.1283 of 2006- This interlocutory application had been filed on behalf of the petitioner for condoning the delay in filing of Civil Revision. This Civil Revision was initially filed on 7.3.2006, however, ultimately after removal of defects it could finally be filed on 10.3.2006. It had been stated that as per the calculation of the office, the limitation had expired on 9th of November, 2005. I have heard learned counsel for the petitioners as well as the opposite parties. It had been submitted on behalf of the petitioner that on advice, the petitioner had filed Misc. Appeal No.29 of 2005 challenging the - 2 - impugned order dated 19.7.2005 before the District Judge, West Champaran at Bettiah, however, since the appeal was not maintainable, the appeal was permitted to be withdrawn with a liberty to the appellant to seek relief at the appropriate forum. Thereafter, the petitioner had fallen ill and could come to contact his concerned Advocate on 23.2.2006 and ultimately the appeal could be filed on 7.3.2006. Though no counter affidavit has been filed on behalf of opposite parties to this Interlocutory Application, learned counsel for opposite parties vehemently opposed the prayer of the petitioner for condonation of the delay. It had been submitted on behalf of the opposite parties that day to day explanation of delay had not been furnished by the petitioner. However, on being satisfied with the sufficiency of reasons shown in this Interlocutory Application, I.A. No.1283 of 2006 is allowed and the delay in filing of this Civil Revision is hereby condoned. Now, I proceed to consider the Civil Revision on its merit which had been heard and being disposed of at this stage with the consent of the parties. This Civil Revision is directed against the order dated 19.7.2005 passed in Partition Suit No.209 of 2003 by the Sub Judge-I, West Champaran at Bettiah, whereby he had dismissed the suit being not maintainable in view of the provisions as contained in Order XXII Rule 9 and Order XIV Rule 2 of the Code of Civil Procedure (hereinafter referred to as “the Code”). The plaintiff-appellant-petitioner had filed Partition Suit - 3 - No.209 of 2003 before the Sub Judge, West Champaran at Bettiah impleading the opposite parties as defendants for partition of the suit lands to the extent of 1/ 2 share in favour of the plaintiff-petitioner along with other consequential reliefs. Defendants-respondents-opposite parties appeared and filed written statement. On 4.8.2004, the opposite parties filed a petition under Order XXII Rule 9 and Order XIV Rule 2 of the Code raising the question of maintainability of the suit on the ground that the father of petitioner had also filed Partition Suit No.141/71 against the branches of Late Manorath Thakur with respect to the same properties but the suit had been dismissed as abated on 28.5.1975 due to the non substitution of legal representatives of the deceased defendant Raghunath Thakur within the prescribed period of limitation. Thus, in the light of the provisions under Order XXII Rule 9 of the Code, it was urged by the opposite parties, that the suit was not maintainable as the order of abatement had become final since no appeal was preferred thereto and filing of fresh suit on same cause of action was barred. The plaintiff- petitioner raised objection thereto and submitted that though the Partition Suit No.141 of 1971 stood abated on account of non substitution of legal representatives of Late Raghunath Thakur, still the present Partition Suit could not be said to barred under the said provision of law as partition is recurring cause of action so long the properties remain joint. The court below had held that the suit was not maintainable on the ground of its being barred under the provisions of Order XXII Rule 9 and Order XIV Rule 2 of the Code on account of the fact that for self same properties Partition Suit No.141/71 was brought by the father - 4 - of the plaintiff against the branches of defendants and the suit was dismissed as abated on 28.5.1975. Since no appeal was preferred against that order, the same having attained finality, the subsequent Partition Suit No.209/03 filed for the same cause of action, would not be maintainable as per the provisions under Order XXII Rule 9 of the Code. I have heard the parties and perused the records of this case. Learned counsel for the opposite parties submitted that once the suit had abated, in view of the provisions under Order XXII Rule 9, no fresh suit could be brought on the same cause of action as neither abatement order was set aside by the court concerned nor any appeal was preferred thereto. In support of his aforesaid submission, learned counsel for the opposite parties had placed reliance upon the decision of the Apex Court in the case of Amba Bai and others Vs. Gopal and others, reported in AIR 2001 Supreme Court 2003. The Apex Court had held in the aforesaid decision that as the judgment in second appeal was passed without the knowledge that the appellant had died, the same being a judgment passed against the dead person is a nullity. The second appeal should be taken to have abated by operation of law. And when there was abatement of the second appeal, there can be no merger of the same with the decree passed by the first appellate court. Since the appellant died during the pendency of the second appeal and in the absence of his legal representatives having taken any steps to prosecute the second appeal, the decree passed by the first appellate court decreeing the suit for specific performance must be deemed to have become final. The plaintiff-petitioner, in reply, had submitted that partition - 5 - being a recurring cause of action, the subsequent suit for partition would not be barred under the aforesaid provision of law. Thus, the point of controversy in this Civil Revision is that in view of admitted fact that the Partition Suit No.141/71 was dismissed having been abated due to the non substitution of the legal representatives of the defendant, the fresh Partition Suit, for partition of self same property between the self same branches, brought by the son of the plaintiff of the earlier Partition Suit would be maintainable or not. The relevant provision for consideration would be Order XXII Rule 9 of the Code which is quoted as under: “Order XXII Rule 9. Effect of abatement or dismissal.-(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. x x x x x x x x x x x x x x x x x ” It is explicit from the aforesaid provision of law that where a suit abates or is dismissed under Order XXII Rule 9, no fresh suit could be brought on the same cause of action. However, the suit could be brought on account of fresh cause of action. On perusal of the impugned order it is manifest that the trial court had not recorded any finding on the issue as to whether the property concerned was either partitioned previously or that the plaintiffs had by any process known to the law had lost their right of partition. That being the situation, it has to be held that the plaintiffs’ right of partition subsisted even after the abatement of the previous suit for partition instituted by his father as it is well settled that partition is a recurring cause of action. Petitioner had placed reliance upon a decision of this Court rendered by a Division Bench in the case of - 6 - Dilo Rana and another Vs.Munshi Kunj Behari Prasad and others, reported in AIR (35) 1948 Patna 244. This Court has held in the aforesaid decision that partition is a recurring cause of action so long as the property is joint. Hence, in such a case plaintiffs’ right of partition will subsist even after the abatement of previous suit for partition. No court of competent jurisdiction including the court concerned, which has passed the impugned order, has held that the property concerned had already been partitioned. In view of the above discussions, I am of the opinion that though a subsequent suit for same cause of action after abatement and dismissal of the previous one would not be maintainable in view of the provisions as contained in Rule 9 of Order XXII of the Code, however, since the matter of partition is a recurring cause of action till the property in dispute is not completely partitioned, the subsequent partition suit filed by the son of the plaintiff of earlier suit, after abatement of the previous one, cannot be held to be non- maintainable. Thus, the subsequent Partition Suit No.209/2003 could be maintained by the plaintiff - petitioner and the court below has committed serious jurisdictional error in holding that the subsequent partition suit was not maintainable. I, thus, allow this Civil Revision and set aside the impugned order dated 19.7.2005. P.S./A.F.R. (Dr. Ravi Ranjan,J)