Partition
SRIBHASHYAM MURALIDHAR
(Querist) 12 December 2013
This query is : Resolved
'A' filed suit against his father 'B' and another for partition of suit lands. After filing of the suit 'B' died. 'C' being the daughter and one of legal heirs of 'B' filed petition to implead her as Defendant in the said suit. The Court allowed the said impleading petition. 'A' did not carry out the Plaint and did not choose to file Amended fair copy of the Plaint. The Court gave reasonalbe opportunity to 'A' to amend the Plaint. After that the Court dismissed the Partition suit in default.
My Query is, Whether 'C' has any right to file petition Under Order.9, Rule 9 C.P.C.,to restore the suit?
Dr J C Vashista
(Expert) 13 December 2013
Since "C" did not file the suit, which was dismissed in default (of plaintiff to amend the suit), O IX Rule 9 CPC is not attracted in the instant case, rather she has to file a new suit for partition.
Nadeem Qureshi
(Expert) 13 December 2013
Dear Querist
the plaintiff can file the restiration petition and not defendant, she has a right to file fresh case for partition
R.K Nanda
(Expert) 13 December 2013
nothing to add more.
T. Kalaiselvan, Advocate
(Expert) 13 December 2013
Mr. Sribashyam Muralidhar, firstly the title under O9R9 is "Decree against plaintiff by default bars fresh suit" Your query is - Whether 'C' has any right to file petition Under Order.9, Rule 9 C.P.C.,to restore the suit?
Here two things are to be noted, i.e., though the LR implead petition has been allowed by the court, the amendment has not been effected by the plaintiff hence the suit was dismissed, so C has actually not entered into the suit as a party and she still has no status as one among the defendants; second thing is even if C is considered as defendant on record, the suit was not disposed by the court due to her reason so she has got no locus standi to restore the suit;
Further as per the provisions of the above question of law, the plaintiff only may apply for an order to set the dismissal aside and if he satisfies the court that there was sufficient cause for his non appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as it thinks fit. Thus as suggested by other experts, she may file a fresh partition suit for necessary relief.
Dr J C Vashista
(Expert) 13 December 2013
Very well reasoned advise by Mr. T. Kalaiselvan, Advocate. I endorse and appreciate.
