IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.02.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Appeal Suit (First Appeal) No.1073 of 2007 & M.P.No.1 of 2008 K.Ramachandran .. Appellant/Ist Defendant Vs. 1. K.Ganeshmoorthy 2. Lakshmiammal 3. K.Kamala 4. K.Malathi .. Respondents/Plaintiffs & Defendant 2 to 4 Appeal Suit (First Appeal) against the judgment and decree dat 13.7.2007 in O.S.No.2 of 2006 on the file of District Court, Nilgiris Udhagamandalam. For appellant : Mr.S.K.Rakhunathan For respondents : Mr.C.A.Diwakar for RR-1 & 2 RR-3 & 4 notice served JUDGMENT The first defendant has filed the present First Appeal (Appe Suit) challenging the observations made by the trial Court whi dismissing the suit for partition. The trial Court has come to t conclusion that the description of the properties given by the fir respondent/plaintiff, was not clear as required under Order 7 Rule 3 CP and Civil Rules of Practice and circular orders, and the trial Court h also given an opportunity to the first respondent/plaintiff to file fresh suit for partition with a clear description of the propertie against which, the present First Appeal has been filed by the fir defendant. 2. It is pertinent to note that the first respondent/plaintiff the brother of the appellant/first defendant. The fir respondent/plaintiff has filed the suit against his brother (fir defendant), mother (second defendant) and sisters (defendants 3 and 4 for partition and separate possession of his 1/5 share in the su https://hcservices.ecourts.gov.in/hcservices/ properties. He has given the description of the properties in nine item The appellant/D1 has contested the suit stating that the description the property has not been given in accordance with Order 7 Rule 3 CP Further, he has stated that the properties are separate properties. In t written statement, he has stated that the plaintiff has not stated as what are the items of the ancestral property, and what is the extent each items of the properties. Even though the first respondent/plainti has given the description of the properties, the trial Court dismiss the suit with observations, after framing eight issues. in issue No.1, t trial Court decided that the defendants have clearly pointed out in t written statement that the plaintiff has not described the properti properly and they have also contended that no executable decree could passed. It is the further case of the appellant/D1 that they are not in position to meet out the case of the plaintiff, since the plaintiff h not given description to identify the properties properly. The descripti of the property given in the plaint is bald, scanty and incomplete. S the trial Court, after considering the decisions of Courts, dismissed t suit stating that the suit is dismissed for non-furnishing the corre particulars and the description of the properties and gave an opportuni to contravene or contradict the statement of the fir respondent/plaintiff. At the time of dismissal of the suit, the tri Court made an observation that, " ... It is open to the parties to file fresh suit for partition with clear description of the properties required under Order 7 Rule 3 CPC and the Civil Rules of Practice and t Circular Orders if they are so advised." Those observations have be incorporated in the decree in Clause (2). In the decree, it is stated follows: "(1) that the suit be and the same is hereby dismissed. (2) that it is open to the parties to file a fresh suit for partition with clear description of the properties as required under Order 7 Rule 3 CPC and the Civil Rules of Practice and Circular Orders if they are so advised. (3) that there be no order as to costs." Against these observations in the decree, particularly in Clause (2), t present First Appeal has been preferred by the first defendant. 3. Learned counsel appearing for the appellant/D1 submitted th the first respondent/plaintiff filed the suit for partition, but he h not furnished the description of the properties in accordance with Order Rule 3 CPC and so, the appellant/D1 was unable to identify his proper (ies) and put forth his defence. The trial Court framed proper issues a considering the averments of the parties, dismissed the suit for want correct description of the properties. But, at the time of dismissing t suit, liberty was given to the first respondent/plaintiff to file fre suit with a clear description of the properties as required under Order Rule 3 CPC and the Civil Rules of Practice and it will affect the righ of the appellant/D1 and since it was incorporated in Clause (2) of t decree, the appellant/D1 has come forward with this First Appeal a prayed for allowing the same. 4. To substantiate his arguments, learned counsel appearing f the appellant/D1 relied upon the following decisions: https://hcservices.ecourts.gov.in/hcservices/ (i) Vol.XLVIII MLJ 64 Privy Council (Part II) (Fateh Singh Vs. Jagannath Baksh Singh): "But as the Judges in the Court of the Judicial Commissioner have observed, some complication was introduced by the language of the Judge who tried the first case and by his expressing himself as if he had power to give leave to bring a fresh suit. It was contended on behalf of the plaintiffs that in so expressing himself he was purporting to exercise the powers given to the Court by O.23, which allows the Court in certain cases to grant the plaintiff permission to withdraw from a suit with liberty to issue a fresh suit, in which case the bar against a fresh suit which is otherwise imposed on a plaintiff who abandons his first suit is removed. The same point was raised at their Lordships' bar, but their Lordships agree with the Court of the Judicial Commissioner that it is not a good one. There was no application for leave to withdraw the suit, nor was it withdrawn: it was dismissed. And the power of the learned Judge ceased upon this dismissal. It may have been unfortunate for the plaintiffs that the learned Judge thought that he had a power which he did not possess, but happily, as the Judges on the appeal observed, it is improbable that there was substance in the claim which they have been prevented from further prosecuting." (ii) AIR 1929 Calcutta 88 (Ram Saran Mandal Vs. Radha Raman): "The suit was tried and determined on the merits, and in the event was dismissed upon the ground that the plaintiff had failed to prove his title or that the property was secular property. The learned trial Judge further held that inasmuch as one of the shebaits had not been impleaded and the heirs of another (who had died pendente lite) had not been substituted there was a defect of parties, and upon that ground also the suit failed. The plaintiff lodged an appeal and in the course of the hearing before the lower appellate Court the plaintiff applied for permission to withdraw the suit with liberty to bring a fresh suit upon the same cause of action. The learned Subordinate Judge acceded to the plaintiff's prayer and passed an order allowing "the plaintiff to withdraw the suit with liberty to bring a fresh suit on the same cause of action against the other shebaits (i.e. other than the plaintiff) in their character as shebait persons claiming under them as such." Whether or not, apart from the present suit, the plaintiff is at liberty to take further proceedings in this matter against the defendants need not now be considered. The question is whether this Court has jurisdiction to interfere with the order under review, and, if so, whether it ought to exercise its powers under https://hcservices.ecourts.gov.in/hcservices/ S.115, Civil P.C., in favour of the petitioners. Now, the object of the legislature in enacting O.23, R.1, as I apprehend, was that where a suit must fail by reason of some formal defect or some other "sufficient ground" was proved, the Court should be at liberty, in order that substantial justice might be done, to permit the plaintiff (on such terms, if any, as it thought fit) to withdraw the suit, and to recommence the proceedings in a suit duly framed according to law. But, in my opinion, it was never intended or contemplated that after a suit had been tried and dismissed on the merits the plaintiff should be permitted to start the proceedings all over again against the successful defendants merely because there was also a formal defect in the frame of the suit: Watson v. Collector of Rajshahye (1869) 13 M.I.A. 160 = 12 W.R. 43 = 2 Suther 269 = 2 Sar. 500 (PC), Kharda Co. v. Durga Chandra (1910) 11 C.L.J. 45 = 5 I.C. 187. Otherwise, much hardship and prejudice might accrue to defendants who already had contested the suit, and had succeeded in defeating the plaintiff's claim on the merits. Now, in this case, as I read the judgment of the learned Subordinate Judge, he was of opinion that as soon as it became apparent that there was a formal defect in the frame of the suit he ought to allow the plaintiff to withdraw the suit with liberty to bring a fresh suit on the same cause of action, without taking into consideration the fact that the suit had been heard and decided against the plaintiff on the merits. In my opinion, in adopting that view the learned Subordinate Judge misdirected himself as to the meaning and effect of O.23 R.1, and the order under review cannot stand." 5. Repudiating the said contentions of the learned counsel for t appellant/D1, learned counsel for the respondent 1/plaintiff and respondent/second defendant, submitted that it is true that the plainti has not given the correct description of the properties and the suit w dismissed with liberty to file fresh suit, but in the suit for partitio the cause of action is continuous one and even if no liberty was give the first respondent/plaintiff is entitled to file a fresh suit f partition and it is neither barred under Section 11 CPC regarding re judicata, nor under Order 2 Rule 2 CPC and so, no prejudice will be caus if Clause (2) of the impugned decree is incorporated. To substantiate t same, learned counsel for the first respondent/plaintiff and seco respondent/D2 relied upon the following decisions: (a) 1993 (1) MLJ 60 = MANU/TN/0343/1992 (Madras High Court) (Baliah Nadar and another Vs. Rayappan and others): "4. There is no substance in the argument that the suits are barred by the principles of res judicata. O.S.No.233 of 1971 was a suit for partition which was dismissed for default. There was no decision on merits. Hence, the principles of resjudicata will not apply. If the parties are https://hcservices.ecourts.gov.in/hcservices/ co-sharers, then they are entitled to maintain a suit for partition so long as there is no division. Just because an earlier suit for partition is dismissed for default without a decision of the Court that the plaintiff is not entitled to a share in the properties, the plaintiff will not cease to be a co-sharer. Hence, a second suit is maintainable as the cause of action is a continuing one." (b) AIR 1926 Madras 594=MANU/TN/0404/1925 { (Mylavarapu) Rangayya Naidu Vs. Basana Simon and others}: 10. ..... That case is consistent with the decision in Ramanadan Cheiti Vs. Pulikutti Servai (1898 (21) Mad. 288) where the rule of procedure that a party suing for possession must show that on the date of suit he was entitled to relief is followed. Suits for partition are exceptions to be general rule, In Doraiswami Pillai Vs. Chinnia Goundan (1918 (7) LW 335) it was held that a suit for redemption was liable to be dismissed on the pleadings in the plaint, and the plaintiff during the pendency of the suit obtained a conveyance which cured his want of title and he was to amend his plaint and obtain a decree for redemption. In that case, the flaw in the plaintiff's right to redeem was not that his suit was premature in point of time, but that he had not got title from the true owner. The case is not an authority for the proposition that if a suit is premature at the date of institution a decree can nevertheless be granted. In my opinion 'the only course where the plaintiff brings his suit before the cause of action arises is to dismiss the suit with liberty to bring a fresh suit upon a proper cause of action." 6. Learned counsel for the first respondent/plaintiff and seco respondent/D2 further submitted that the first respondent as plaintif filed the suit for partition after furnishing all the particulars and no the suit was ripe for trial and if the First Appeal is allowed, t appellant/D1 would protract the proceedings by way of filing a petiti after petition. Hence, learned counsel prayed for dismissal of the Fir Appeal. 7. Learned counsel for the first respondent/plaintiff and seco respondent/D1 further stated that earlier, an application has been fil and that has been disposed of and considering the order that has be passed, holding that the right to sharer in filing the partition suit, a continuing one, and if the parties are co-sharers, then they a entitled to maintain the suit for partition, so long as there is division. The second suit is maintainable as the cause of action is continuing one. Hence, learned counsel prayed for dismissal of the Fir Appeal. 8. Though the respondents 3 and 4 were served, they did not choo to either appear in person or through counsel. 9. Considering the rival submissions made by both side admittedly, after the dismissal of the suit, the fir https://hcservices.ecourts.gov.in/hcservices/ respondent/plaintiff has filed a fresh suit for partition, which is n pending. 10. In the decision reported in Vol.XLVIII MLJ 64 PC (Part I (cited supra), the suit was dismissed but liberty was reserved to t plaintiff to file fresh suit for possession. In the said citation, it w stated that the judgment in the prior suit was not a bar to the seco suit and that as the case was not filed under Order 23 Rule 1 CPC, aft dismissing the suit, there is no power for the Court to reserve t liberty for the plaintiff to take the fresh proceedings. The second su was dismissed. The plaintiff obtained a special leave to file appeal His Majesty in Council and after hearing both sides, the appeal w dismissed. 11. So, the learned counsel appearing for the appellant/ submitted that even though the right to liberty for filing a fresh su for possession was given by the Privy Council, it was held in the abo said citation Vol.XLVIII MLJ 64 PC Part II, that once the power of t learned Judge is ceased upon the dismissal, and when once the suit w dismissed, unfortunately, for the plaintiffs therein, the learned Jud thought that he had a power which he did not possess, but happily as t Judges on the appeal observed that it is improbable that there w substance in the claim which they have been prevented from furth prosecution. 12. In the present case, the suit was dismissed only on t ground of not furnishing the correct description of the properties accordance with Order 7 Rule 3 CPC and Civil Rules of Practice and t Circular Orders. 13. In the decision reported in AIR 1929 Calcutta 88 (cit supra), relied on by the learned counsel for the appellant/D1, the ca was remitted to the appellate Court to determine according to law respect of a direction given under the meaning and effect of Order Rule CPC and in that case, suit was permitted to be withdrawn with liber to file fresh suit on the basis of the plaint. This citation is n applicable to the facts of the present case. 14. Admittedly, in the present case, the suit was filed f partition. As per the dictum laid down by this Court reported in AIR 19 Madras 594 (cited supra), the suit for partition is an exception to t general rule. But as per the dictum of this Court reported in 1993 (1) M 60 (cited supra), in the suit for partition, there is no decision merits and the principle of res-judicata will not apply and if the parti are co-sharers, then they are entitled to maintain the suit for partitio so long as there is no division. 15. In the present case, the suit has been dismissed for n giving proper description of the properties, as envisaged under Order Rule 3 CPC. The second suit for partition is maintainable as the cause action is a continuing one. 16. Furthermore, it is pertinent to note that already, fresh su has been filed, which is pending and now it is posted for examination witnesses. In such circumstances, because of the observations in t impugned judgment and decree, the appellant/D1 has not lost anythin Further, as per the decision reported in Vol.XLVIII MLJ 64, Privy Counc (cited supra), when once the Court dismisses the suit, the power of t https://hcservices.ecourts.gov.in/hcservices/ learned Judge ceases upon the dismissal and hence, in the present cas the learned Judge had no power to give liberty to the parties to file fresh suit for partition with clear description of the properties required under Order 7 Rule 3 CPC and the Civil Rules of Practice a Circular Orders. In such circumstances, the observations made by the tri Court are unwarranted, since as soon as the suit was dismissed, the pow of the Court ceases and hence, the said liberty given by the trial Cou is liable to be expunged. 17. In the result: (i) The First Appeal is allowed in part without costs. (ii) The judgment and decree (clause ii) of the trial Cou regarding the liberty given to file fresh suit, is deleted/expunged. (iii) The miscellaneous petition is closed. cs Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. District Court, Nilgiris, at Udhagamandalam. 2. Record Keeper, V.R. Section, High Court, Madras. + 1 cc to Mr.C.A.Divakar, Advocate SR.No.11925 A.S.No.1073 of 200 VSV(CO) RRI/19.5.2011 https://hcservices.ecourts.gov.in/hcservices/