Delhi High Court
Ashok Singh Lodhi vs Pratap Singh & Ors. on 24 October, 2011
Author: Pradeep Nandrajog
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 24th October, 2011
+ RFA(OS) 47/2007
ASHOK SINGH LODHI ..... Appellant
Through: Mr.Sugriva Dubey, Advocate
versus
PRATAP SINGH & ORS ..... Respondents
Through: Mr.Astender Kumar, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE S.P.GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J. (Oral)
1. Vide impugned order dated 2.7.2007, suit being CS
(OS) No.113/2005 filed by the appellant has been dismissed on
account of the bar under Order 9 Rule 8 read with Order 9 Rule
9 CPC and additionally on account of concealing relevant facts.
2. Reason why impugned order has been passed is that
appellant/plaintiff had filed a suit for partition with respect to the
same property in respect whereof CS(OS) 113/2005 was filed. In
said suit, appellant filed an application to withdraw the suit
praying that liberty be granted to file a fresh suit in the Court of
competent jurisdiction.
3. The said application was dismissed on 7.2.2005 and
thereafter nobody appeared on behalf of the appellant, resulting
in the said suit being dismissed in default of appearance on
10.2.2005.
4. Concealing aforesaid facts, CS(OS) 113/2005 was
filed on the same allegations as were made in the previous suit
and the view taken by the learned Single Judge is that a co-joint
reading of Order 9 Rule 8 and Order 9 Rule 9, bars second suit
on the same cause and additionally for the reason the
appellant/plaintiff has not disclosed truthful facts.
5. On the issue of non-disclosure of relevant facts,
suffice would it be to state that it is a wrong impression that
every kind of suppression would debar a party to obtain relief
from a Court.
6. Where the suit relates to discretionary jurisdiction of
the Court, for example, a decree for injunction or a decree for
specific performance of an agreement to sell, conduct of the
party would be relevant. The reason is that a Court would be
justified in refusing to exercise its discretionary jurisdiction in
favour of a person who pollutes the stream of justice by washing
dirty hands in the stream of justice.
7. But where the remedy does not relate to a
discretionary jurisdiction of the Court, suppression of a fact may
have no bearing on the relief to be granted.
8. As regards the fact that the earlier suit seeking
partition was dismissed in default and thus no second suit would
lie, suffice would it be to state that the effect of Order 9 Rule 8 is
that a fresh suit on the same cause of action is barred but as
held in the decision reported as 1959 PLR 264 Manohar Lal Vs.
Onkar Das & Ors., this would not apply to a suit for partition.
The reason is that as long as jointness of possession and unity of
title continues, the cause of action continues.
9. Following observations in the said decision need to
be highlighted:-
"Apart from the above, the Court trying the previous
suit did not proceed to enforce the agreement and
did not dismiss the suit on the basis of the same. The
case had been adjourned to 21st February 1947 when
the plaintiff did not appear and the Court proceeded
to dismiss the suit in default under the provisions of
Order IX, Rule 8, Civil Procedure Code. There can be
no doubt that an order under Order IX Rule 8, Civil
Procedure Code, cannot amount to res judicata for
the simple reason that the suit cannot be deemed to
have been heard and finally decided by means of this
order. The only effect of an order passed under
Order IX, Rule 8, Civil Procedure Code, is that a fresh
suit based on the same cause of action is barred by
the provisions of Order IX, Rule 9, Civil Procedure
Code. It has, however, been repeatedly held that a
suit for partition dismissed for default under Order IX,
Rule 8, Civil Procedure Code, does not bar a
subsequent suit for partition. The reason is that the
right to enforce a partition is a continuous right which
is a legal incident of 'a joint tenancy and which
enures so long as the joint tenancy continues: See in
this connection Bisheshar Das v. Ram Prasad,
Madhura Gramani v. Sesha Reddy and Thayyan v.
Kannikan-dath Kizhe Purakkal. The learned counsel
for the respondents contended that his clients having
denied the joint status of the parties in the previous
suit it must be deemed that the joint status came to
an end. We are afraid we cannot accept such a
curious contention. The plaintiff alleged in the
previous suit that the property was joint and relies on
the same joint tenancy in the present suit. He will
obviously be entitled to a decree for partition if it is
found that the property claimed to be joint by him is
actually joint and the suit will obviously fail if it is
proved that this allegation made by him is untrue.
For the purposes of deciding this issue it has to be
assumed that the plaintiff's suit is for partition of a
certain joint property which was joint at the time of
the previous suit and continues to be joint up till now.
The plaintiff in the previous case applied for
restoration of his suit but his application was
dismissed on the ground that he had failed to
establish sufficient cause for his non-appearance in
Court. In First Appeal from Order No.2 of 1949 the
order of the trial Court refusing to restore the suit
was affirmed by Soni J. on 7th October, 1949. This,
however, does not affect the decision in the present
case, as for all intents and purposes, it is being
assumed that the previous suit was dismissed in
default under the provisions of Order IX, Rule 8, Civil
Procedure Code. The present suit being for partition
of the property cannot be deemed to be barred by
the provisions of Order IX, Rule 9, Civil Procedure
Code, for the reasons given above. The previous
order dated 21st February 1947 cannot bar the
present suit either on the ground of res judicata or on
the ground of estoppel and the finding of the trial
Court on issue No.2 is obviously erroneous so far as
the claim of partition is concerned."
10. We are informed that the earlier suit filed in the Court
of District Judge Delhi was subsequently got revived and
withdrawn in view of the subsequent suit being filed.
11. The appeal is accordingly allowed. Impugned
judgment and decree dated 2.7.2007 is set aside. CS(OS)
113/2005 is restored for adjudication on merits.
12. At this stage, learned counsel for the respondents
states that before the suit was dismissed on account of being
held to be barred under Order 9 Rule 8, an ex-parte preliminary
decree was obtained by the appellant and counsel prays that
since the same was obtained without serving the defendants the
preliminary decree may be set aside.
13. We cannot set aside the preliminary decree declaring
share of the parties in the suit property as prayed by learned
counsel for the respondents, but would observe that upon
restoration of the suit the respondents would be free to move an
application praying that the ex-parte preliminary decree
obtained needs to be set aside.
14. No costs.
15. Dasti.
PRADEEP NANDRAJOG, J.
S.P.GARG, J.
OCTOBER 24, 2011
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