CHAKRESH KUMAR MODI Vs. KAMLA KHARE

JUDGEMENT

(1.) THIS is a revision by the defendant Nos. 1 and 2 against the order by which it has been held that the suit is not barred by Order 22 Rule 9, CPC.

(2.) B. P. Khare was owner of the house Nos. 175 and 176, Tularam Chowk, Jabalpur. He died in 1970 leaving behind six sons and a widow. Plaintiff Kamla Khare is widow of one of the sons. According to her, there has been no partition of the house and it continues to be the joint family property. Three co-sharers sold a portion of the house to three persons by registered sale deeds dated 8-4-1987. The plaintiff filed three civil suits challenging the alienations. One of the defendants Ram Narain Khare who was also a co-sharer died during the pendency of those suits but his legal representatives were not brought on record and therefore the suits were held to have abated by order dated 4-1-1996. Thereafter, the heirs of another co-sharer sold a portion of the house to the defendant Nos. 1 and 2 by registered sale-deed dated 18-8-1998. The plaintiff filed Civil Suit No. 9-A of 2001 challenging this alienation. The defendants raised the objection that this suit is not maintainable in view of the bar created by Order 22 Rule 9, CPC. The Trial Court overruled this objection by the impugned order.

(3.) ORDER 22 Rule 9 (1) provides : "where a suit abates or is dismissed under this order, no fresh suit shall be brought on the same cause of action". The argument of the learned Counsel for the petitioners is that the "cause of action" in the earlier suit and the present suit is the same and therefore the present suit cannot lie. It is contended that the cause of action means the entire bundle of facts which the plaintiff has to prove in order to establish his right and the relief he claims. The Trial Court has held that the cause of action in the earlier suit was the alienations made by some of the co-sharers in the year 1987 and the cause of action in the present suit is the alienation made by some other co-sharer in the year 1998. The view taken by the Trial Court cannot be said to be erroneous. Order 22 Rule 9 (1) prohibits a fresh suit on the same cause of action. The test is the identity of the causes of action. The abatement of the suit under this rule does not operate as res judicata. There is no decision on merits on any of the issues involved in the suit which has abated. Mulla says in his Commentary on CPC 15th Edition Vol. Ill page 2065 the dismissal of suit for partition under this rule does not bar a fresh suit for partition as the right to partition is a continuing and recurring one. It means the abatement of the suit for partition does not signify that the property in dispute is not the joint family property. In the present case the alienations were made by certain co-sharers in the year 1987. These were challenged in three different suits which abated on the death of one of the CO" sharers. The dismissal of the suit as abated has this effect that these alienations cannot be challenged by the plaintiff. Now there is fresh alienation by another co-sharer. That gave rise to fresh causes of action. There is no identity of the cause of action in the two suits. The plaintiff can still allege and prove that the property continues to belong to the Joint Hindu Family and therefore the fresh alienation without partition should be struck down.