Mst. SANIA And Another vs Mst. ZARJANA And Other
This matter concerns a petition for leave to appeal against a High Court judgment that dismissed the petitioners' civil revision in a suit for possession through partition of a house. The High Court had dismissed the suit on the grounds that an earlier similar suit had been dismissed under Order IX, Rule 8 of the Code of Civil Procedure 1908. The petitioners contend that in a suit for partition, the cause of action is a continuing one, and therefore, a subsequent suit is not barred by the provisions of Order IX, Rule 9 of the Code of Civil Procedure 1908. The Supreme Court, finding that the question raised requires examination, granted leave to appeal. The Court directed the appeal to be prepared on the existing record, with parties instructed to file all necessary documents for final disposal.
- Is a second suit for partition barred by Order IX, Rule 9 of the Code of Civil Procedure 1908 if an earlier similar suit was dismissed under Order IX, Rule 8?
- Does a suit for partition involve a continuing cause of action?
- Order IX Rule 8, Code of Civil Procedure 1908
- Order IX Rule 9, Code of Civil Procedure 1908
ORDER
1. MUHAMMAD AFZAL ZULLAH, C.J.---Leave to appeal has been sought by the plaintiffs' side; against the dismissal by the High Court, of their Civil Revision in a suit for possession through partition of a house. It was dismissed on account of the dismissal of an earlier similar suit under Order IX, Rule 8, C.P.C. The petitioners having failed in appeal and revision have now sought leave to appeal.
2. Learned counsel has contended that in a suit for partition the cause of action is continuing one, therefore, a second suit in the circumstances of this case was not barred by Order IX, Rule 9, C.P.C.
3. He has relied on commentary on C.P.C. By D.F. Mulla on the afore-noticed provision as also on Keesari Santamma v. Kanumatha Reddi Venkatarama Reddi and others AIR 1935 Mad. 909.
4. Question raised requires examination. Leave so appeal is granted.
5. Security Rs. 5,000.
6. The appeal shall be prepared on present record with direction to the parties to file all those documents which shall be necessary for disposal thereof.