AIR 2011 JAMMU AND KASHMIR 64

Jammu And Kashmir High Court

Hon'ble Judge(s): Hasnain Massodi , J

(A) Jammu and Kashmir Civil P.C. (10 of 1977 Smvt.) , O.9 R.9, S.11— Bar of fresh suit - Earlier suit dismissed for non-prosecution - Would not operate as res-judicata against subsequent suit - Right of co-sharer to get joint property partitioned gives rise to "recurring cause of action" till property is partitioned - Dismissal of suit for partition for non-appearance does not debar a fresh suit for partition. Dismissal of suit for non-prosecution does not operate as resjudicata against subsequent suit. The Court, dismissing a civil suit for non prosecution, does not adjudicate upon rights of the parties and finally decide lis. The second suit on same cause of action, on which first suit dismissed for non-appearance, was brought, is barred because of express rule of procedure enshrined in Order 9, Rule 9, CPC. The rule, however, is attracted only where second suit is brought on same cause of action as suit dismissed for non appearance, was brought. In case second suit, is not filed on cause of action on which first suit was laid, Order 9, Rule 9, CPC has no application and does not create a bar against second suit.(Para 13) The right to get a joint property partitioned by one of co-sharers gives rise to "recurring cause of action". The cause, continues till joint property is not partitioned and co-sharers get their respective s....