ASHA SHARMA Vs. AMAR NATH

JUDGEMENT

(1.) The substantial question of law which calls for answer is : "Whether second suit for partition is precluded under Order 9, Rule 9 of the Code of Civil Procedure where an earlier suit for partition was dismissed in default under Order 9, Rule 8 of the Code of Civil Procedure?

(2.) In order to appreciate controversy, few facts may be noticed :

(3.) Prabha Ram, Sant Ram, Relu Ram and Brahm Dass were sons of one Lakhoo Ram. In November, 1981 Sant Ram and Prabha Ram laid a suit before the trial Court for partition and separate possession of a three-storeyed building situate in Khasra No. 264 at Lower Bazar, Solan, in the District Solan, claiming that plaintiffs Sant Ram and Prabha Ram had 1/4th share each and the defendants Relu Ram and legal heirs of Braham Dass, the defendants, had also 1/4th share each in this property. The plaintiffs wanted to separate and wanted that property should be partitioned. This suit was resisted by the defendants. However, the suit was dismissed in default on 2/07/1984 under Order 9, Rule 8 of the Code of Civil Procedure. It appears that an application for restoration of the suit was filed by the plaintiffs on 7/07/1984. This application was withdrawn and dismissed, as such, on 19/06/1985.