Reopening of dismissed cases
yeteendra naidu
(Querist) 20 December 2013
This query is : Resolved
This is a case where "A" owned two properties of an open plot in a co-op. society and the other a house building. 40 years back "A" expired leaving a nomination for the co-op plot to one "B" of his 6 "C,D,E,F,G" children. Both are his self acquired properties. No will for the house building.25 years after his death 5 of his children (non-nominees of the plot)filed a joint suit for partition of both the properties of house building and the co-op. society plot in the city civil court where the case was dismissed for default later they filed a case in High Court which was also dismissed for default.
Can these dismissed cases be revived or can they "C,D,E,F,G" approach any court for reopening their cases for partition, it's more than five years since the cases were dismissed.
Sharing of properties are at stand still. will it be in order for the nominee "B" to file a case in Supreme Court to claim his share in house building, and also the coop society plot.Is there any time limit for reopening these dismissed cases to claim the properties. Kindly advise what "B" should do to claim his property and coop. plot.
Dr J C Vashista
(Expert) 20 December 2013
Apply for restoration of the case in the same court which has dismissed. Move another application for condonation of delay (after 30 days of dismissal), giving justification for delay in filing the application for restoration.
Raj Kumar Makkad
(Expert) 20 December 2013
Partition is a recurring cause of action and mere dismissal of the suit on default do not vitiate the right of the legal heirs of deceased to re-file the civil suit for instead of trying for restoration, file a fresh suit.
malipeddi jaggarao
(Expert) 20 December 2013
Agreed with the experts above. As regards filing partition suit by B in Supreme Court, there is no such provision to file this civil dispute directly in Supreme Court. B has to file partition suit within the jurisdiction of the court in which the property is situated.
ajay sethi
(Expert) 20 December 2013
how do you explain 5 years delay in filing restoration application ?
Rajendra K Goyal
(Expert) 20 December 2013
Agree with the expert raj kumar makkad ji.
T. Kalaiselvan, Advocate
(Expert) 20 December 2013
As advised by Mr. Makkad, partition is recurring cause of action and res-judicata clause cannot operate here. Further as you said that the original suit was dismissed for default how an appeal was preferred before the high court on the subject without seeking restoration from the same court? Are you sure that an appeal was preferred on the subject instead of filing a petition to set aside the dismissal order and restore the suit? However due to the exorbitant delay in filing a petition to restore the main suit, better to file a fresh suit for partition.
