IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2182 of 2006 1. SHEO NANDAN SINGH, S/o late Raj Karan Singh 2. Krishna Kumar Singh, S/o late Raj Karan Singh 3. Mostt. Shiv Kumari Devi @ Shio Kumari Devi, W/o late Ram Bilash Singh 4. Pramod Kumar Singh, S/o Sheo Nandan Singh 5. Manoj Kumar Singh, S/o Sheo Nanda Singh 6. Rakesh Kumar, S/o late Ram Bilash Singh 7. Mukesh Kumar, S/o late Ram Bilash Singh 8. Rajiv Kumar, S/o Krishna Kumar Singh 9. Sanjiv Kumar, S/o Krishna Kumar Singh All residents of mohalla – Barihat Ward No. 4/13, P.S. Khajanchi Hat, District Purnea, all are presently resident of village P.O. Afai Vila Karaiparsurai, P.S. Fatua, at present Sahjanpur, District Patna ……. Defendants/Petitioners Versus 1. RAM BALI SINGH 2. Shyam Bali Singh 3. Sheo Hari Singh 4. Siya Ram Singh All are sons of Mahadeo Singh 5. Sheo Prasad 6. Suraj Kumar Both sons of Ram Bali Singh 7. Chanchala Devi, W/o late Om Prakash Singh 8. Manish Kumar, minor son of late Om Prakash Singh 9. Satish Kumar, minor son of late Om Prakash Singh - 2 - Both through their mother and natural guardian of Chanchala Devi 10. Chakra Barti Kumar singh(Minor) son of Siya Ram Singh, under the guardianship of the father 11. Tahuka Devi, daughter of Late Mahadeo Singh and wife Sukhdeo Singh All residents of village – Arai, P.O. Arai, P.S. Fatua Sahjanpur, district Patna , at present resident of Barihat Ward No. 4/13, P.S. K.Hat, District Purnea …. Opp. Parties. For the petitioners : M/s. S.S.Dwivedi, Sr. Advocate, Laxman Lal Pandey & R.S.Dwivedi, Advocates For the State : M/s Sidheshwari Pd. Singh, Sr. Advocate Krishna Kishoe & Shashank Kr. Singh, Advocates ------ 4 6.11.2009 Heard learned counsel for the petitioners as well as O.P. No. 1 to 6. This civil revision is directed against the order dated 28.9.2006 passed by the 5th Subordinate Judge, Purnea, in T.S. No. 230 of 2004, whereby the Court below had rejected the prayer of the petitioners to hold the suit as barred under provisions as contained in Order IX, Rule 9 of the Code of Civil Procedure (hereinafter referred to as “the Code”) after determining the same as a preliminary issue. - 3 - A supplementary affidavit has been filed on behalf of the petitioners appending therewith order-sheet of the earlier Title Suit No. 198 of 1975 including the order dated 15.4.1989, dismissing the suit. It is submitted that it would be manifest from the order dated 15.4.1989 passed in T.S. No. 198 of 1975 that the suit had been dismissed for default in the presence of the defendant, thus, it was a dismissal under Order IX Rule 8 of the Code. As a result of which the subsequent suit brought for same cause of action was barred as per the proviso under Order IX Rule 9 of the Code. It is submitted that the Court below had erred in holding that it was not clear as to under which provision the earlier suit had been dismissed and had also stated that partition being recurring cause of action till the properties remain joint between the parties, the subsequent suit would be maintainable. Learned counsel for the opposite parties submitted that issues have already been framed in this suit and thereafter this objection has been raised by the petitioners which is clearly in teeth of the provisions contained in Order XIV Rule 2 of the Code which stipulates that if the issues - 4 - have been framed then the Court shall decide all the issues, which are involved in the case. So far the aforesaid contention of the opposite parties is concerned, I do not find any force in the same as the sub Rule (2) of Order XIV itself provides that if the Court is of opinion that the case or any part thereof could be disposed of on an issue of law only, it may try that issue first if the same relates to a bar to the suit created by any law for the time being in force. That apart, there is also a provision under Order VII Rule 11(d) of the Code, whereunder the defendant can seek rejection of the plaint if the same is barred by law. So far the bar under Order IX Rule 9 is concerned from, it is true that the language is clear in terms that the subsequent suit for same cause of action is completely barred and only course open to the plaintiffs is to file an application for setting aside the order of dismissal of the suit before that Court. Relevant provision is quoted as under: “Order IX Rule 9(1) Decree against plaintiff by default bars fresh suit – 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 satisfied the Court that there was sufficient cause for his non-appearance - 5 - 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.” Identical provision is also under Order XXII Rule 9 which is quoted as follows: “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 ” This court had an occasion to examine the effect of Order XXII Rule 9 on subsequent partition suit after abatement / dismissal of previous one in C.R. No. 465 of 2006 (Ram Krishna Thakur Vs. Om Prakash Thakur & others). This Court had followed the decision of Division Bench of this court in Dilo Rana and another Vs. Munshi Kunj Behari Prasad and others, AIR (35) 1948, Patna 244 and had held that partition is recurring cause of action till the property is not partitioned finally, thus, the subsequent partition suit could not be held to be barred under the aforesaid provision so long the properties concerned remain joint. Upon conjoint reading of both the provision, one would reach to conclusion that under both provisions, fresh suit on same cause of action is barred. The language of the provision as under Order IX - 6 - Rule 9 for that purpose is in pari materia with the provisions as contained Order XXII Rule 9 of the Code. This is not in dispute that both the suits are partition suits and the properties involved in the subsequent partition suit (Annexure 1) were also included in the earlier partition suit (Annexure 2). Thus, in my opinion, principle laid down in that case will also be applicable in the present case. Therefore, it is held that in view of the fact that partition is a recurring cause of action, the subsequent suit, i.e. Title Suit No. 230 of 2004, cannot be held to be barred under Order IX Rule 9 as the properties still remained joint between the parties. Thus, in my opinion Court below has not committed any jurisdictional error in passing the impugned order. As a result, this civil revision is dismissed. Spd/- A.F.R. (Dr. Ravi Ranjan, J.) -----------