Orissa High Court
Tusagra Pruseth & Another vs Chudamani Pruseth & Others ... Opposite ... on 26 March, 2025
ORISSA HIGH COURT : CUTTACK
C.R.P. No.15 of 2024
An application under Section 115 of the Code of Civil
Procedure, 1908.
***
Tusagra Pruseth & Another ... Petitioners.
-VERSUS-
Chudamani Pruseth & Others ... Opposite Parties.
Counsel appeared for the parties:
For the Petitioners : Mr. N.C. Rout, Advocate.
For the Opposite Parties : Mr. P.K. Satapathy, Adv. O.P No.1.
Mr. T.K. Mishra, Adv. O.P. No.2.
P R E S E N T:
HONOURABLE
MR. JUSTICE ANANDA CHANDRA BEHERA
Date of Hearing: 20.03.2025 :: Date of Judgment : 26.03.2025
ANANDA CHANDRA BEHERA, J.--
1. This revision under Section 115 of the CPC, 1908 has
been filed by the petitioners (defendants in the suit vide C.S.
No.166 of 2022) against the Opposite Parties (plaintiffs in the
suit vide C.S. No.166 of 2022) challenging an order of rejection
to their petition for disposing of the suit vide C.S. No.166 of
2022 on a preliminary issue on the point of the maintainability
of that suit on the ground of withdrawal of earlier suit for
partition vide C.S. No.4 of 2018 by the plaintiff (Opp. Party No.1
in this revision) passed on dated 01.03.2024 by the learned
Trial Court i.e. learned Sr. Civil Judge, Kuchinda.
2. I have already heard from the learned counsels of both the
sides.
3. In order to assail the impugned order, the learned counsel
for the petitioners (defendants in the suit vide C.S. No.166 of
2022) relied upon the following decisions:
I. In a case between Sathyanath & Another Vs.
Sarojamani reported in (2022) 7 SCC 644.
II. In a case between Sitaram & Others Vs.
Antaryami Mohapatra reported in 96 (2003)
CLT 762.
On the contrary in support of the impugned order the
learned counsel for the Opp. Party No.1 (plaintiff in the suit
vide C.S. No.166 of 2022) relied upon the following decisions:
I. In a case between Shiv Shakti Coop. Housing
Society, Nagpur Vrs. M/s. Swaraj Developers
& Others reported in AIR (SC) 2003 Page-2434.
II. In a case between Sitaram @ Mahendra Ghosh
Vrs. Sri Antaryami Mohapatra & 18 others
reported in 2003 (2) OLR 409.
III. In a case between Radhanath Jena Vrs.
Jadunath Jena & Others reported in 2000 OLR
(II) Page-510.
IV. In a case between Satyanath & Another Vs.
Sarojamani reported in AIR 2022 (SC) 2242.
4. The learned Trial Court has rejected the petition of the
defendants for disposing of the suit vide C.S. No.166 of 2022 of
the plaintiff on a preliminary issue on the ground of its non-
maintainability for the withdrawal of earlier suit for partition of
the plaintiff vide C.S. No.4 of 2018 for the same properties as
per Order dated 01.03.2024 assigning the reasons that,
"to end the litigation, issues are already framed in the
present suit vide C.S. No.166 of 2022 filed by the plaintiff for
partition, for which, whether the suit is maintainable or not shall
be decided after final hearing of the suit. Therefore, the question
of deciding the suit on a preliminary issue as sought for by the
defendants does not arise. Therefore, the petition of the
defendants stand rejected".
5. It is the settled propositions of law that, High Court
cannot interfere with an impugned order in a civil revision,
when either by such impugned order, the suit has not been
finally disposed of or if such impugned order shall allow to
stand, the same would occasion in failure of justice or shall
cause irreparable injury to the party against whom the
impugned order is passed.
6. Here in this revision at hand, the impugned order dated
01.03.2024 passed by the learned trial court in the suit vide
C.S. No.166 of 2022 rejecting the petition of the defendants
(petitioners in this revision) for the disposal of that suit on a
preliminary issue does not amount to the final disposal of that
pending suit for partition vide C.S.No.166 of 2022.
There is also no material in the record to show that, due
to the rejection of the petition of the defendants through the
impugned order, there is any failure of justice. Rather the final
adjudication of that suit for partition vide C.S. No.166 of 2022
shall be in furtherance of rendering substantial justice to the
parties. Because, the suit properties have not been
divided/partitioned between the parties through metes and
bounds partition.
For which, this revision filed by the petitioners
(defendants in the suit vide C.S. No.166 of 2022) is not
entertainable under law.
The propositions of law has already been settled that,
withdrawal of a suit for partition without obtaining
permission for filing an another suit for partition by the
same plaintiff for the same properties shall never
preclude/debar the plaintiff from filing a fresh suit for
partition for the same suit properties. Because, cause of
action in every suit for partition is recurring one.
7. On this aspect the proposition of law has already
been clarified by the Hon'ble Courts in the ratio of the
following decisions:
I. Mukha Singh & Others vs. Ramchariter Singh
& others reported in AIR 1956 (Pat.) 143,
Madhura Gramani Vs. Thummala Sesha Reddi
& Others reported in AIR 1926 (Mad.) 1018 &
Kannikandath Kizhe Purakkal Vella's Son,
Thayyan Vs. Kannikandath Kizhe Purakkal
reported in AIR 1935 (Mad.) 458 that, in a suit
for partition, the cause of action is a recurring one.
Unless and until the joint properties are
divided/partitioned through metes and bounds
partition, a fresh suit for partition is maintainable
even after the decision made in the previous suit
for partition, as the right to partition is a right
accruing from time to time and there is a
continuing cause of action till the continuance of
jointness in the suit properties.
II. Hari Basudev Vs. State of Orissa & Another
reported in AIR 2000 (Ori.) 125 that, no specific
order granting liberty to institute fresh case was
passed. However, in petition for withdrawal,
petitioner sought to reserve his right to file fresh
case. Held, in circumstances, permission to file
fresh case could be said to be impliedly granted in
withdrawal order. Hence, subsequent election
petition in respect of same matter is maintainable.
(Para Nos.6 & 7)
III. Devdutt vs. Shasi Verma & Others reported in
2021 (3) Civ.C.C. 412 (Chh) that, withdrawal of
suit for partition without obtaining permission for
filing a fresh suit. The plaintiff is not debarred from
filing a fresh suit for partition, as cause of action
for filing suit for partition is recurring one. (Para
Nos.11 & 13)
8. Here in this revision at hand, when the present suit vide
C.S. No.166 of 2022 is a suit for partition and when as per law,
withdrawal of an earlier suit for partition by the same plaintiff
shall not preclude/debar him/her from filing a fresh suit for
partition in respect of the same properties like the present suit
at hand vide C.S. No.166 of 2022 and when certified copy of the
application for withdrawal of the previous suit vide C.S.No.4 of
2018 was not filed by the defendants (petitioners in this
revision) for perusal of the trial court in order to ascertain,
whether the plaintiff had filed that petition for withdrawal in
the previous suit vide C.S. No.4 of 2018 reserving his right to
file a fresh suit or not and when the issues have already been
framed in the present suit vide C.S. No.166 of 2022 including
one issue therein regarding the maintainability of the suit on
the ground of withdrawal of the earlier suit vide C.S. No.4 of
2018 and when in view of the ratio of the decisions referred to
supra in Para No.7 of this Judgment, withdrawal of the
previous suit for partition vide C.S. No.4 of 2018 by the plaintiff
shall not be a bar for the maintainability of the 2nd Suit for
partition vide C.S. No.166 of 2022, as the cause of action in the
suit for partition is recurring one, because, the right to partition
is a right occurring from time to time and there is a continuing
cause of action till the continuance of the jointness of the
properties, then, at this juncture, the impugned order dated
01.03.2024 passed by the learned Trial Court in C.S. No.166 of
2022 rejecting the petition of the petitioners (defendants)
cannot be held as erroneous.
So, the decisions relied upon by the petitioners
(defendants) indicated in Para No.3 of this Judgment are not
applicable to this revision on facts and law as discussed above.
For which, the question of interfering with the impugned
order passed by the Trial Court through this revision filed by
the petitioners (defendants) does not arise.
9. Therefore, there is no merit in the revision of the
petitioners (defendants in the suit vide C.S. No.166 of 2022).
The same must fail.
10. In result, the revision filed by the petitioners (defendants
in the suit vide C.S. No.166 of 2022) is dismissed on contest,
but without cost.
11. Accordingly, the revision is disposed of finally.
(ANANDA CHANDRA BEHERA)
JUDGE
High Court of Orissa, Cuttack
The 26 .03. 2025// Rati Ranjan Nayak
Sr. Stenographer
Location: High Court of Orissa, Cuttack, India.
