THANESHWAR Vs. HEMLAL

JUDGEMENT

(1.) The short question for consideration in these revisions is whether second suit for declaration of title and permanent injunction is barred under Order 9 Rule 9 of the CPC where an earlier suit for partition was dismissed in default under Order 9 Rule 8 of the CPC.

(2.) Original plaintiff-Isbati [mother of non-applicant No.1 (a) & (b) herein] filed a suit for declaration of title and permanent injunction restraining the defendant-Hiralal (father of applicants herein) from interfering with her peaceful possession. The said suit was filed against defendant-Hiralal, who also died during pendency of the suit and his legal heirs were brought on record (applicant herein). The original plaintiff claimed that she is title holder of the suit land and it was encroached by defendant Hiralal, therefore, he be restrained from interfering with possession by way of permanent injunction. Upon summons being served, the applicants herein/defendant therein filed an application under Order 7 Rule 11 Code of Civil Procedure (hereinafter referred to as "CPC") that the plaintiff-Smt.Isbati had previously instituted a suit for declaration of her 1/3rd share in suit property against defendant-Hiralal and his mother Ramhinbai on 28.09.1977, which was dismissed in default for want of plaintiff's appearance on 12.08.87 and no application for setting aside the dismissal of suit was filed and that order has become final and therefore, the subsequently filed suit by the original plaintiff-Isbati is liable to be rejected being barred by law under Order 7 Rule 11 CPC.

(3.) Upon hearing the parties, the trial Court vide its impugned order dated 30.7.2014 rejected the said application by observing that since the Appellate Court has remanded the case for fresh trial, therefore, it is rejected at this stage.