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Md. Abdul Wahhab Miah Hossain Ahmed, JJ

Harmuj Sikder & Ors.

vs.

Ayub Ali Sikder & Ors.

The cause of action for a partition suit being recurring one, dismissal of a partition suit for default does not bar again a suit for partition.

Section 12 of the Code has put a bar upon a plaintiff from instituting a further suit in respect of any particular cause of action in any court to which the Code applies where he is precluded by any rules thereof from r instituting such suit. Rule 9(1) of Order ix of the Code has clearly provided that where a suit is wholly or partly dismissed under rule 8, (the plaintiff shall be precluded from bringing

a fresh suit in respect of the same cause of action. but he may apply for an order to set the dismissal aside. There is no limitation for filing a suit for partition and unless there is a total ouster of the right of a co-sharer from the ejmali property he shall be deemed to be in ejmali possession of the properties sought to be partitioned. if not partitioned earlier by metes and bounds. The cause of action for filing a suit for partition arises when the other co-sharer or co-sharers refuse the plaintiff to give his due share from the ejmali property And the cause of action for filing a suit for 1 partition being continuing and recurring it shall continue unless the other co-sharers give the plaintiff his due share partitioning the suit land by metes and bounds. (Para-6)

Public policy is equivalent to "policy of the law". And "policy of the law" cannot be to deprive a person from his legitimate share in the ejmali property. The aim of public policy shall always be to ensure and safeguard the legal right of a person which might have accrued to him under a statute as well as under the personal law. If the purport and scope of a public policy is extended to the extent that in spite of the repeated demand by a person of his due share from the other cosharers in the ejmali property he is not given his due share, and then because of the dismissal of an earlier suit for partition if he is precluded from bringing a fresh suit on ground of public policy and upliftment and development then the other co-sharers shall be encouraged to enjoy and possess property more than their share. (Para-9)

Mr. Faruque Ahmed. for the petitioner. Mr. Sheikh Muhd. SerajUI ]slam. for the opposite party No.1

Judgment delivered on May :26. :2008.

Judgment

Md. Ahdul Wahllab Miah, J: This Rule was issued calling upon opposite party No.1 to show cause as to hy the order dated 12.03. 2005 passed by the Additional District Judge, Munshigonj in Civil Revision No. 15 of 2004 upholding the order dated 06.06.2004 passed by the First Court of Joint District Judge. Munshigonj, in Title Suit No. 135 of 2001 should not be set aside and as to why the plaint should not be rejected and/or pass such other or further order or orders as to this Court may seem fit and proper.

2. Facts necessary for disposal of the Rule are that opposite party No.1 as plaintiff filed Partion Suit No. 135 of 2001 in the Court of Joint District Judge, Munshigonj impleading the present petitioners and Opposite parties No. 2-7 as defendants. In the said suit the present petitioners being defendants No. 54, 58 and 59 filed an application under Order VII, rule 11 of the Code of Civil Procedure (the Code) for rejection of the plaint. The main ground for rejection of the plaint as it appeared from the application filed under Order VII, rule 11 of the Code was that the plaintiff admitted in paragraph 23 of the plaint that earlier he filed Title Suit No. 337 of 1981 for partition but the same was dismissed for default on 01.09.1990 and thereafter he filed a miscellaneous case being No. 92 of 1990 for setting aside the order of dismissal passed in the said title suit which was also dismissed for default. Therefore, the suit was barred under the provisions of rule 9 of Order IX of the Code. 1n the application it was also contended that as the suit was not filed within 6(six) years from the date of the cause of action which arose on 6.8.1981 as stated in Title Suit No. 337 of 1981, the same was barred by limitation. The application was opposed by the plaintiff- opposite party.

3. The learned Subordinate Judge 1st Court Munshiganj by his order dated 6.6.2004 kept the said application pending for consideration at the time of final disposal of the suit on the observations that the cause of action for filing a suit for partition being recurring without taking evidence it was not possible to decide whether the suit was barred by limitation or by the principle of res judicata. Against the said order of the learned Subordinate Judge, the defendant petitioners filed Civil Revision No. 15 of 2004 before the District Judge, Munshiganj under section 115(2) of the Code. The learned Additional District Judge who heard the said revision by the impugned order rejected the revision application and thus maintained the order passed by the learned Subordinate Judge. Being aggrieved by the impugned order the petitioners filed the present revision application under section 115(4) of the Code and obtained the present rule by way of leave.

4. Mr. Faruque Ahmed, the learned Advocate appearing for the petitioners argued that in view of the assertions made in the plaint that earlier the plaintiff filed another suit for partition which was dismissed for default and an application under Order IX, rule 9 of the Code for setting aside the said order of dismissal was also dismissed for default he was debarred from filing a fresh suit within the meaning of the said rule of the Code, so the plaint was liable to be rejected. But the learned Additional District Judge totally failed to consider the said provisions of law and thus committed error of law resulting in an error occasioning failure of justice in passing the impugned order. Mr. Faruque Ahmed further submitted that besides the said provisions of the Code filing of the instant suit after long gap of the dismissal of the earlier partition suit was against public policy and was also impairing to the upliftment and development to have been undertaken by the co-sharers other than the plaintiff, as because of the filing of such suit there was a halt to their right in undertaking the development and upliftment work in portion of the suit land in their possession, so the plaint was liable to be rejected on the said count as well invoking the provisions of section 151 of the Code and, as such, the impugned order is liable to be set aside and the plaint be rejected.

5. Mr. Sheikh Muhd. Serajul Islam, the learned Advocate appearing for the plaintiff-opposite party, on the other hand, submitted that the cause of action for a suit for partition is continuous, in other words, recurring and is quite distinct and different from the cause of action of the suit of other nature and though the plaintiff might have been precluded from bringing a fresh suit of the other nature in view of the provisions of Order IX, rule 9 of the Code, yet he cannot be precluded to bring a fresh suit for partition though earlier suit for partition was dismissed for default, therefore, the court below rightly refused to reject the plaint and, as such, no interference is called for with the impugned order. In support of his contention Mr. Sheikh Muhd. Serajul Islam has referred to the case of Abdul Jabbar being dead his heirs Humayun Kabir & others Vs. Sultan Miah & others reported in 2 BLT 139. Mr. Islam further submitted that every co-sharer has an inalienable right to get his share in the properties in ejmali possession with the other co-sharers which right might have emanated through inheritance, by purchase as well as under the other mode of acquisition of title as provided in the law of the land and if a cosharer, here the plaintiff is debarred from suing afresh to get his due share on the plea of public policy and social upliftment and development then he shall be deprived of his legal right of getting his due share in the ejmali property and in the instant case there being no previous partition of the suit land by metes and bounds amongst the co-sharers the question of rejection of the plaint does not arise at all and the learned Joint District Judge rightly did not reject the plaint.

6. Section 12 of the Code has put a bar upon a plaintiff from instituting a further suit in respect of any particular cause of action in any court to which the Code applies where he is precluded by any rules thereof from instituting such suit. Rule 9(1) of Order 9 of the Code has clearly provided that where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action, but he may apply for an order to set the dismissal aside. So the core question to be seen to debar a plaintiff from bringing a fresh suit is whether the fresh suit is instituted on the same cause of action on which the previous suit which was dismissed for default under rule 8 of Order IX of the Code was brought. Naturally. the question which automatically follows is, whether the cause of action to bring a suit for partition subsists even after dismissal of the: earlier suit for default under rule 8 of Order IX of the Code. It is an admitted legal position that there is no limitation for filing a suit for partition and unless there is a total ouster of the right of a co-sharer from the ejmali property he shall be deemed to be in ejmali possession of the properties sought to be partitioned, if not partitioned earlier by metes and bounds. It need not be discussed by wasting so many pages that the cause of action for filing a suit for partition arises when the other co-sharer or co-sharers refuse the plaintiff to give his due share from the ejmali property. And the cause of action for filing a suit for partition being continuing and recurring it shall continue unless the other co-sharers give the plaintiff his due share partitioning the suit land by metes and bounds. Similar question came up for consideration in the case of Abdul labbar being dead his heirs Md. Humayun Kabir and others V s. Sultan Mia and others as reponed in 1994(11) BLT, 139, though in a casual manner, and a Division Bench of this court held to the effect:

"The plaintiffs are not debarred from filling (sic) the instant suit for partition even if they were unsuccessful (sic) before the Revenue authorities as aforesaid. The cause of action for a partition suit being recurring one, the dismissal (sic) of a partition suit for default does not bar again a suit for partition"

7. In Indian jurisdiction in the case of Kannikandath Kizhe Purakkal Vella's son, Thayyam Vs. Kannikandath Kizhe Purakkal reported in AIR 1935, Madras, 458 a Division Bench held that where a partition suit is dismissed for default. it does not bar a subsequent suit; the reason is that. even after the dismissal of the former suit. the jointness continues and there is a continuing cause of action.

8. We do not see any reason to take a different view from the view taken in the said two cases for the reasons already stated hereinbefore.

9. The submission of Mr. Faruque Ahmed that the instant suit for partition having been filed long after the dismissal of the earlier suit for partition is against public policy and social upliftment and development and, therefore, the plaint was liable to be rejected cannot be : accepted. The reason being public policy is equivalent to policy of the law". And "policy of the law" cannot be to deprive a person from his legitimate share in the ejmali property.

The aim of public policy shall always be to ensure and safeguard the legal right of a person which might have accrued to him under a statute as well as under the personal law. If the purport and scope of a public policy is extended to the extent that in spite of the repeated demand by a person of his due share from the other co-sharers in the ejmali property he is not given his due share and then because of the dismissal of an earlier suit for partition if he is precluded from bringing a fresh suit on the ground of public policy and upliftment and development then the other co-sharers shall be encouraged to enjoy and possess property more than their share.

Equally there cannot be any upliftment and development on the land or property by a co-sharer to the deprivation and at the cost of the legitimate right of the other co-sharer and if that is allowed to be done that will lead to a dangerous situation and giving premium to, the primitive rule of ' might is right'. We are of the view that public policy demands that a co-sharer who is enjoying more land than his share should part with the excess land and give the due share to his other co-sharer, here the plaintiff, not to speak of any demand made by him.

10. From the order passed by the learned Subordinate Judge it appeared that he totally misconceived the application filed by the defendant- petitioners and kept the same pending for consideration at the final hearing of the suit on the view that without taking evidence it could not be decided whether the suit was barred by resjudicata and limitation. In fact in the application filed under Order 7, rule 11 of the Code the defendant sought for rejection of the plaint as being barred under the provisions of Order 9, rule 9(1) of the Code as well as barred by limitation. Be that as it may, in view of the discussions made above, we are of the view that the plaintiffs suit was neither barred under the provisions of order 9, rule 9(1) of the Code nor under the provisions of article 120 of the Limitation Act as contended by the defendants in their application filed under Order 7, rule 11 of the Code, so the learned Subordinate Judge ought to have rejected the said application without keeping the same pending for decision at the peremptory hearing of the suit.

11. In the result the Rule is discharged.

The application filed by the defendant petitioners under Order VII, rule II of the Code is rejected. The trial court is directed. to dispose of the suit as expeditiously as possible preferably within 6(six) months from the date of receipt of this judgment.

12. There will be no order as to costs.