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withdrawn an earlier suit would be maintainable.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withdrawn and disposed of as such.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withdrawn, as evident from the pursis placed on record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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