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Report No. 27

Order I, rule 11

Instead of the words "the suit" the words "a suit" have been substituted, as in the R.S.C.1

1. See R.S.C. Revision (1962), Order 15, rule 18.

Order II, rule 2 and partition suits

The applicability of the principle embodied in Order 2, rule 2 to partition suits presents some problems. But that is because such suits form a peculiar category. The two main questions are

(i) Where a claim for partition of a particular property is omitted by mistake, inadvertence or ignorance in the earlier suit, can it be included in a later suit;

(ii) Where, in the earlier suit, a claim for partition of a certain property was intentionally not made, can it be made in a later suit?

On the first point, there does not appear to be much uncertainty, as courts have allowed the later suit1-2-3-4. There are general observations in a Madras case5 that all properties of which existence is known should be included; but these were made to overrule the contention that property outside the jurisdiction need not be included. They do not rule out the case of inadvertence.

On the second point, there seems to be some amount of uncertainty. One view is, that even where a claim for partition of certain properties is omitted intentionally, a second suit will lie (if no objection is taken in first suit)6. It is also stated that the cause of action in a partition suit is a recurring one7. Another view is, that where the exclusion of the property in the first suit was intentional, a subsequent suit is barred8.

It is, however, unnecessary to enact any proposition for such particular kinds of suits. No change in the language is, therefore, recommended on this point.

1. Subramaniam v. bikshminarasamma, AIR 1927 Mad 213 (Devadoss J.). (No "omission" to sue where ignorance).

2. Gapulal v. Gajasa, AIR 1932 Nag 92 (Inadvertence).

3. Jogendra Nath v. Baldev Das, ILR 35 Cal 961 (Mistake of Commissioner in first suit).

4. Sasi Mohan v. Hari Nath, AIR 1928 Cal 459 (reviews case-law).

5. Basavangudda v. Doddiliagappa, AIR 1923 Mad 584.

6. See Sasi Mohan v. Hari Nath, AIR 1928 Cal 459 (460) (Suhrawardy and Graham B.).

7. Monsharam v. Ganesh, 17 CWN 521, cited in Mitra Law of Co-ownership, etc., 1963, p. 213.

8. Jasoda Kumari v. Sartyabhama, AIR 1960 Pat 76.

Code of Civil Procedure, 1908 Back

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