Saturday 23 July 2022

Can a person file a new suit for partition if he had previously withdrawn suit for partition unconditionally?

 This Court agrees with the law laid down in

the judgment in the case of Laxmanrao Mahadeorao

Nikose (supra), wherein it is categorically held that

cause of action for partition being a recurring one, a

subsequent suit by the very same person, having

withdrawn an earlier suit would be maintainable. {Para 14}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH: NAGPUR

CIVIL REVISION APPLICATION NO. 45 OF 2021

Subhash Mukundrao Deshmukh Vs. Prakash Mukundrao Deshmukh and Ors.


CORAM : MANISH PITALE J.

DATE : 18.07.2022.

By this revision application, the applicant,

who is the original defendant No.2, has approached this

Court challenging order dated 24.09.2021, passed by

the Court of XIth Joint Civil Senior Division, Amravati,

whereby an application filed by the applicant for

rejection of plaint under Order 7 Rule 11 of the Code of

Civil Procedure, 1908 (CPC) was rejected.

2. The case of the applicant before the Court

below was that the suit filed by respondent No.1

seeking declaration, injunction, partition and separate

possession did not deserve consideration by the Court

below, for the reason that an earlier suit for identical

relief filed by the very same party was unconditionally

withdrawn and disposed of as such. It was submitted

that only one property was subject matter of the earlier

suit, but in the subsequent suit other properties were

also included. It was submitted that once the

respondent No.1 unconditionally withdrew the earlier

suit and abandoned his claim, he could not be

permitted to pursue the subsequent suit. This

contention was obviously raised on the basis of Order

23 Rule 1(4) of the CPC.

3. The respondent no.1 opposed the said

application. The Court below took into consideration

rival submissions and rejected the said application,

primarily on the basis that the earlier suit was dealing

with only one property, while the subsequent suit dealt

with four properties and therefore, the subject matters

of the suits were different.

4. Mr. Akshaya Sudame, learned counsel

appearing for the applicant referred to Order 23 Rule

1(4) of the CPC and submitted that in the present case,

admittedly the earlier suit was unconditionally

withdrawn, as evident from the pursis placed on record

of the said suit and the order dated 24.11.2014, passed

in the earlier suit bearing Special Civil Suit

No.84/2013. The learned counsel then invited

attention of this Court to the subsequent suit bearing

Special Civil Suit No.167/2016 filed by the respondent

No.1 and he contended that, other than including three

more properties as subject matter of the suit, certain

pleadings were added as regards the circumstances in

which the earlier suit was withdrawn and virtually the

same relief was sought on behalf of respondent No.1.

It was submitted that by operation of Order 23 Rule

1(4) of the CPC, such a subsequent suit, on the face of

it, could not be entertained and that the plaint ought to

have been rejected. The learned counsel placed

reliance on judgments of the Hon’ble Supreme Court in

the case of Vallabh Das Vs. Dr. Madan Lal and Ors.,

1970 (1) SCC 761 and Sarguja Transport Service Vs.

State Transport Appellate Tribunal, MP., Gwalior and

Ors., (1987) 1 SCC 5.

5. When this application was argued on the

last occasion, the learned counsel appearing for the

contesting respondent No.1 relied upon the judgment of

this Court in the case of Laxman Mahadeo Nikose Vs.

Narayan Mahadeo Nikose and Ors. 2014 (5) Mh.L.J.

772, to contend that the subsequent suit was

maintainable, as the suit was for partition and that in

such cases, there can certainly be recurring cause of

action, even if an earlier suit is either withdrawn or

disposed of without consideration on merits.

6. In response thereto, the learned counsel

appearing for the applicant submitted that an earlier

judgment in the case of Harishchandra Vithoba

Narawade and Ors. Vs. Vatsalabai Narayan Shinde 2004

(4) Mh.L.J. 897, was not brought to the notice of this

Court when the case of Laxmanrao Mahadeo Nikose

(supra) was decided. By placing reliance on the said

judgment, it was contended that although the

successor-in-title of the respondent No.1 may institute a

subsequent suit for such reliefs, in view of the

unconditional withdrawal of the earlier suit, respondent

No.1 was barred from instituting the subsequent suit.

Reliance was also placed on recent judgment of this

Court in the case of Devidas @ Shekhar s/o Mahadeo

Deokar and Ors. Vs. Vasant s/o Ganesh Deokar and Ors.

2022 (3) All.M.R. 224, to contend that the Court below

had committed an error in rejecting the application for

rejection of plaint.

7. On the other hand, Mr. Rohit Joshi, learned

counsel appearing for the contesting respondent No.1

submitted that the judgement in Laxmanrao Mahadeo

Nikose (supra) covered the position of law completely


in favour of the said respondent. It was submitted that

unlike other suits, when a suit for partition is filed and

for some reason, either it is withdrawn or dismissed in

default or otherwise not disposed of on merits, a

subsequent suit is certainly maintainable for the reason

that jointness of the family is not taken away. As long

as the status of jointness remains, there would be

recurring cause of action for filing such a suit.

8. The judgments in the case of Harishchandra

Vithoba Narwade(supra) and Devidas @ Shekhar s/o

Mahadeo Deokar (supra) were sought to be

distinguished on the basis that in both the cases it was

the successor-in-title who had filed the subsequent suit

and even while discussing such a scenario, in the recent

judgment of Devidas @ Shekhar s/o Mahadeo Deokar

(supra), the judgment of the Laxmanrao Mahadeo

Nikose (supra) was referred to and expressly confirmed.

On this basis, it was submitted that while there could

be no quarrel with the proposition of law laid down by

the Hon’ble Supreme Court in the aforesaid judgments

relied upon by the learned counsel for the applicant,

considering the subject matter of the present suit, it

could not be said that the subsequent suit was barred

by law.


9. Heard learned counsel for the rival parties

and perused the material on record. A perusal of the

impugned order does show that the principal question

that arose for consideration was not referred to or

decided, although it was concluded that the subsequent

suit was indeed maintainable. The reason stated by the

Court below was that since there were four properties

made subject matter of the subsequent suit, it could not

be said that the subject matter was the same as the one

in the earlier suit and therefore, the application filed by

the revision applicant stood rejected. This Court is of

the opinion that the Court below could have examined

the matter in further detail to consider the contentions

raised on behalf of the applicant.

10. Be that as it may, it would be appropriate to

examine the contentions raised on behalf of the

applicant in the backdrop of admitted facts. In the

present case, there is no dispute about the fact that,

apart from prayers for declaration and injunction, the

respondent No.1-plaintiff specifically prayed for

partition and separate possession of the subject

properties. The fact that the earlier suit was filed for

similar relief is also stated in the subsequent suit and

certain pleadings are specifically brought on record in

the subsequent suit, as to the backdrop in which the

earlier suit was withdrawn and why the respondent

No.1 was constrained to file the subsequent suit seeking

relief, inter alia, of partition and separate possession.

11. A perusal of the judgment of this Court in

the case of Laxmanrao Mahadeorao Nikose (supra)

would show that in similar circumstances, when the

very same plaintiffs filed a subsequent suit after an

earlier suit for similar relief was withdrawn, this Court

considered earlier judgments of the Allahabad High

Court in the case of Bisheshar Das and another Vs. Ram

Prasad and anr. 1891 ILR 13 All. 309 (Full Bench),

Calcutta High Court in the case of Madan Mohan

Mondul Vs. Baikanta Nath Mondul, Vol.X Calcutta

Weekly Notes 839 and of the Nagpur High Court Abdul

Majid Kha s/o Mahebubkha Vs. Mahmudabi w/o

Bahadurkha, AIR (36) 1949 Nagpur 366. After

considering the aforesaid three judgments, this Court

specifically concluded that since the cause of action for

partition was a recurring one, the rigour of Order 23

Rule 1(4) of the CPC would not apply. On this basis, it

was held that the subsequent suit was maintainable.

12. The aforesaid judgment has been referred to

and followed in the recent judgment in the case of

Devidas @ Shekhar s/o Mahadeo Deokar and Ors.


(supra). The only factual distinction in the recent

judgment was that the successor of the original plaintiff

had brought the subsequent suit and, in those

circumstances, it was held that the subsequent suit was

clearly maintainable, being a suit for partition. In the

said judgment, reference was made to the aforesaid

earlier judgment in the case of Harishchandra Vithoba

Narawade and Ors. (supra). In other words, both the

judgments were referred to and the position of law was

clarified by agreeing with the said judgments.

13. In this backdrop, when the earlier judgment

in the case of Harishchandra Vithoba Narawade and

Ors. (supra) is perused, it is found that in the said case

also, the successor-in-title had filed the subsequent suit

in the backdrop of her father having filed an earlier suit

for partition and having withdrawn the same. In the

facts of the said case, the Court referred to Order 23

Rule 1(4) and found that, if the subsequent suit was to

be held to be not maintainable it would lead to

disastrous consequences. In other words, the point for

consideration in the said earlier judgment was not as to

whether the subsequent suit by the same person seeking

partition could be said to be barred when an earlier suit

by the said person had been withdrawn unconditionally.

14. This Court agrees with the law laid down in

the judgment in the case of Laxmanrao Mahadeorao

Nikose (supra), wherein it is categorically held that

cause of action for partition being a recurring one, a

subsequent suit by the very same person, having

withdrawn an earlier suit would be maintainable.

15. The learned counsel appearing for

respondent No.1 also relied upon judgment of this

Court in the case of Ashabai wd/o Rambhau Awachat

and Ors. Vs. Madhusudan s/o Rajaram Chourasia, 2017

(5) Mh.L.J. 588. Although it pertains to Order 9 Rule 9

of the CPC, relevant observations have been made

therein also. In the said case, the Court was

considering a situation where an earlier suit for

partition was dismissed-in-default and a subsequent suit

was filed by the same person on the same cause of

action. In these circumstances, this Court observed that

it was settled position of law that cause of action for a

suit for partition is a recurring one and that where a

partition suit is dismissed for default, it does not bar

filing of a subsequent suit, as even after dismissal of the

former suit, jointness continues and there is a

continuing cause of action. This Court sees no reason

to not follow the same logic in the present case where

the earlier suit was unconditionally withdrawn. The

aspect of continuing jointness cannot be denied and

therefore, there is no substance in the contentions

raised on behalf of the revision applicant.

16. Insofar as reliance placed on the judgments

of the Hon’ble Supreme Court in the case of Sarguja

Transport Service (supra) and Vallabh Das (supra) is

concerned, there can be no quarrel with the proposition

laid down therein, but the said judgments were

concerned with the question as to what could be

defined as subject matter of a suit in the context of the

same being barred under Order 23 Rule 1(4) of the

CPC. The question of cause of action concerning

partition being a recurring one was not considered in

the said judgments and the facts in the said cases were

different. Hence, the judgments are distinguishable.

17. Even otherwise, there are detailed pleadings

in the subsequent suit about the circumstances in which

the respondent no.1 was constrained to file the said

suit. There is reference to subsequent events. This

aspect would also require examination during the

course of trial.


18. In view of the above, it is found that there is

no merit in the present civil revision application,

Accordingly, it is dismissed.

JUDGE


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