RFA (OS) 47/2007. Case: Ashok Singh Lodhi Vs Pratap Singh and Ors.. High Court of Delhi (India)

Case NumberRFA (OS) 47/2007
CounselFor Appellant: Mr. Sugriva Dubey, Advocate and For Respondents: Mr. Astender Kumar, Advocate
JudgesMr. Pradeep Nandrajog and Mr. Justice S.P. Garg, JJ.
IssueCivil Procedure Code (CPC) - Order 9, Rules 8 and 9
Judgement DateOctober 24, 2011
CourtHigh Court of Delhi (India)

Judgment:

Pradeep Nandrajog, J.

  1. Vide impugned order dated 2.7.2007, suit being CS (OS) No. 113/2005 filed by the Appellant has been dismissed on account of the bar under Order 9 Rule 8 read with Order 9 Rule 9 Code of Civil Procedure and additionally on account of concealing relevant facts.

  2. Reason why impugned order has been passed is that Appellant/plaintiff had filed a suit for partition with respect to the same property in respect whereof CS(OS) 113/2005 was filed. In said suit, Appellant filed an application to withdraw the suit praying that liberty be granted to file a fresh suit in the Court of competent jurisdiction.

  3. The said application was dismissed on 7.2.2005 and thereafter nobody appeared on behalf of the Appellant, resulting in the said suit being dismissed in default of appearance on 10.2.2005.

  4. Concealing aforesaid facts, CS(OS) 113/2005 was filed on the same allegations as were made in the previous suit and the view taken by the learned Single Judge is that a co-joint reading of Order 9 Rule 8 and Order 9 Rule 9, bars second suit on the same cause and additionally for the reason the Appellant/plaintiff has not disclosed truthful facts.

  5. On the issue of non-disclosure of relevant facts, suffice would it be to state that it is a wrong impression that every kind of suppression would debar a party to obtain relief from a Court.

  6. Where the suit relates to discretionary jurisdiction of the Court, for example, a decree for injunction or a decree for specific performance of an agreement to sell, conduct of the party would be relevant. The reason is that a Court would be justified in refusing to exercise its discretionary jurisdiction in favour of a person who pollutes the stream of justice by washing dirty hands in the stream of justice.

  7. But where the remedy does not relate to a discretionary jurisdiction of the Court, suppression of a fact may have no bearing on the relief to be granted.

  8. As regards the fact that the earlier suit seeking partition was dismissed in default and thus no second suit would lie, suffice would it be to state that the effect of Order 9 Rule 8 is that a fresh suit on the same cause of action is barred but as held in the decision reported as 1959 PLR 264 Manohar Lal v. Onkar Das and Ors., this would not apply to a suit for partition. The reason is that as long as jointness of possession and unity of title continues, the cause of action continues.

  9. Following observations in the said decision...

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