Bavoo vs Xavier and Others

Gopalan Nambiyar, C.J.—The appeal is against the order of the Additional Sub Judge, Ernakulam dismissing the Appellant''s application for leave to file a suit in forma pauperis. The same was dismissed on the ground that on a previous occasion the Plaintiff-Appellant had filed Pauper O.P. No. 7 of 1965 which was numbered as O.S. 122 of 1966, and which, thereafter, was dismissed for default as the Plaintiff''s Advocate reported no instructions. The learned Judge was therefore of the view that the present application was barred under Order 9, Rule 9 of the Code of Civil Procedure

Counsel for the revision-Petitioner submitted that the bar under Order IX, Rule 9 of the CPC cannot operate in respect of suits for partition where a continuing cause of action on the basis of the status of jointness as between the Plaintiff and Defendants can be predicated as the basis of the recurring cause of action. He cited the passage in Mulla''s CPC 13th Edn. at page 804 where, with respect to Order IX, Rule 9, the position is stated thus:

Suits for partition -- This rule does not apply to a suit for partition. The reason is that the right to enforce partition is a legal incident of a joint tenancy, and as long as such tenancy subsists, any of the joint tenants may sue for partition of the joint property. On the same principle where a suit by a co-sharer, who claims to be in possession, for a declaration of his title is dismissed for default, a second suit by him for partition is not barred under this rule.

There are decisions which support the position. See for instance Kannikandath Kizhe Purakkal Vella''s Son Vs. Kannikandath Kezhe Purakkal, . We think the contention of Counsel for the Appellant is sound in principle and supported by authority. We accept the same.

Counsel for the Respondent contended before us that the said principle cannot have application to the facts on hand. He stressed that the suit sought to be filed in the instant case, was not one for partition but for a declaration that a sale-deed in favour of the 3rd Defendant is benami for the Plaintiff, and that the subsequent documents executed by the 3rd Defendant are void and of no effect. This, no doubt, we see, is prayer (a) in the application for leave to sue in forma pauperis which may mature into a plaint. But prayer (b) which, in our opinion, is at least an equally important and main relief, if not the more important one, is for partition of the property as among the Plaintiff and Defendants 2, 4 and 5. The prayer for declaration is really by way of removal of obstacle for the prayer for partition, which seems to us to be the main prayer in the suit. The principle stated by Mulla in his CPC extracted above and the principle of the judicial decisions referred to therein are therefore attracted. We allow this appeal, set aside the order of the learned Judge and direct that O.P. 19 of 1975 be taken on file and disposed of in accordance with law and in the light of the observations contained in this judgment. No order as to costs.