- (1.) Having lost the legal battle in connection with the order dated 01.07.2014, in Title Suit No. 135 of 2013 passed by the Learned Civil Judge, Senior Division, Durgapur, the defendants/petitioners have come before this forum with a prayer for setting aside the impugned order on the ground that the Learned Court below fails to appreciate the position of law and did not apply its mind that the plaintiff of that suit ought to have filed an application under Order 9 Rule 9 of Civil Procedure Code instead of filing a fresh suit, which bears the same cause of action, relating to same properties and between the same parties.
(2.) At the time of hearing Learned Counsel appearing on behalf of the defendant/petitioner has submitted that since another partition suit was filed by the opposite parties/plaintiff against the same parties and over the self same properties, the plaint itself is not maintainable. So he had filed an application under Order 7 Rule 11(d), which has been turned down by the Learned Court below.
(3.) Learned lawyer appearing on behalf of the opposite party/plaintiff has submitted that the former suit was only for partition between the parties but second suit bears another cause of action i.e. when a notice from the District Judge, Burdwan, in connection with L.A. case No. 2012 of 1985 was served upon them and accordingly a fresh cause of action arose. In such circumstances, they had to file a fresh suit for ascertaining their right, title and interest.;