See, Balamani v. S.Balasundaram reported in AIR
Case at a glance
Outcome
Dismissed
Accordingly, Civil Revision Petition is dismissed
Provisions considered
- Constitution of India art. 227
- Code of Civil Procedure, 1908 O. 9 r. 9
Key paragraphs
- Para 66. I have gone through the records and have perused the impugned order.7. It is not in dispute O.S.No.9 of 2009 was dismissed for default, as is evident from Paragraph No. 21 of the present plaint. The plaintiffs allege that even as on today, the…
Judgment
C.R.P.(MD)No.799 of 2023BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 02.03.2026CORAMTHE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN C.R.P.(MD)No.799 of 2023andCMP(MD)No.3677 of 20231.P.Ramasamy2.R.Kasthuri3.P.R.Selvam4.P.R.Anand... Petitionersvs.
P.Subramanian2.S.Rathinam3.S.Senthil4.S.Saravanan... RespondentsPRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the fair and decreetal order passed in I.A.No.4 of 2022 in O.S.No.229 of 2020, dated 23.12.2022, on the file of the Additional District Judge, Karur. For Petitioners: Mr.MathavaSelvamFor Respondents: Mr.M.P.Senthil *****1/5 https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.799 of 2023
O R D E RThe defendants are the civil revision petitioners and the plaintiffs are the Respondents.
For the sake of convenience, parties shall be referred to as per their rank in the suit.
O.S.No.229 of 2020 is a suit for partition and separate possession. In the said suit, the defendants filed an application in I.A.No.4 of 2022 seeking rejection of the plaint.
According to them, the plaintiffs had earlier filed a suit in O.S.No.9 of 2009 on the file of Additional District Judge, Karur, seeking the very same relief of partition. The said suit was dismissed for default. Thereafter, the plaintiffs have come forward with the present suit for very same relief all over again. According to the defendants, Order 9 Rule 9 of Code of Civil Procedure bars the presentation of a fresh suit for partition. The learned Additional District Judge, Karur, dismissed the application, holding that under Order 7 Rule 11, where the issue is a mixed question of law and fact, 2/5 https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.799 of 2023the Court must not reject the plaint but should take up that issue along with the suit. Aggrieved by the same, the present Civil Revision Petition is filed.
I heard Mr.MathavaSelvam, learned Counsel for civil revision petitioners/defendants and Mr.M.P.Senthil, learned Counsel for respondents/plaintiffs.
Operative part
I have gone through the records and have perused the impugned order.7. It is not in dispute O.S.No.9 of 2009 was dismissed for default, as is evident from Paragraph No. 21 of the present plaint. The plaintiffs allege that even as on today, the properties have not been partitioned. The cause of action for a partition suit arises day to day, till the claiming co-sharer is ousted. Ouster requires evidence. Further, what is barred under Order 9 Rule 9 is filing a suit on the same cause of action. As the cause of action for a partition suit recurs day to day, the bar under Order 9 Rule 9 will not apply. Hence, the plea for rejection of plaint is absolutely untenable. [See, Balamani V. S.Balasundaram reported in AIR 2009 NOC 2515 Mad)3/5 https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.799 of 20238. Insofar as the plea of Mr.MathavaSelvam that certain individual properties have also been shown as a part of the joint family property in the suit is concerned, that is an issue which has been gone into by the Trial Court, after evidence is recorded, on merits. 9. Accordingly, Civil Revision Petition is dismissed. There shall be no order as to costs. Consequently, the connected miscellaneous petition stands closed. Index :Yes / No02.03.2026Internet: Yes / NoNCC:Yes / NoNsrTo:The Subordinate Court, Mudhukulathur. 4/5 https://www.mhc.tn.gov.in/judis C.R.P.(MD)No.799 of 2023 V.LAKSHMINARAYANAN, J.NsrOrder made inC.R.P(MD)No.799 of 202302.03.20265/5
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: Accordingly, Civil Revision Petition is dismissed
Which statutory provisions did this judgment involve?
Constitution of India — art. 227; Code of Civil Procedure, 1908 — O. 9 r. 9.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.