Laxmi Narayan Soni vs Sudha Gupta & Ors . on 1 May, 2018

Though plaintiff filed judgments in support of the said ground, with due
respect, it is submitted that the said judgments are not applicable to the
issue in hand. His contentions do find strength from judgment titled as
Mahesh Chand Vs. Sumesh Kumar Chaturvedi dated 18.11.2014 in CM
(M) No. 455/2014 of Hon’ble Delhi High Court, wherein while dealing
with scope of Order IX Rule 9 CPC in a suit filed by owner against alleged
trespasser, Hon’ble High Court observed as under:-
“5. Actually the trial court has wrongly referred to the provision of
Order IX Rule 8 CPC because it is the provision of Order IX Rule 9
CPC which bars the filing of a fresh suit, however even this provision
of Order IX Rule 9 CPC does not apply because a fresh suit is barred
only on the same cause of action and not on a different cause of
action. In a suit for possession on the basis of title the owner/plaintiff
has a continuous and a fresh cause of action every moment/second/day
till 12 years from when the defendant claims adverse possession, and
only on the expiry of 12 years (vide Article 65 of the Limitation Act,
1963), the right/title of the plaintiff will stand extinguished in terms of
Section 27 of the Limitation Act. Even the period of 12 years only
commences if defendant sets up a plea of adverse possession and till
the plea of adverse possession is set up the period of 12 years does not
even begin for a suit for possession to be filed by the owner with
respect to the property owned by him. Once entitlement to claim
possession on the basis of title is at least 12 years and definitely till the
period of adverse possession claimed by the defendant expires, it
cannot be said that the subject suit for possession is filed on the basis
of same cause of action of the earlier suit for possession filed by the
mother of the defendant because each second of illegal possession by a
defendant gives rise to a fresh cause of action for filing of a suit for
possession of course till after the expiry of a period of 12 years as per

RFA No. 345/2018 Page 7 of 15
Article 65 of the Limitation Act read with Section 27 of the said Act.
Every day of trespass gives right to file a fresh suit every day i.e every
day of illegal trespass gives a fresh cause of action. To complete the
discussion, it also needs to be noted that a dismissal in default for non-
prosecution does not amount to res judicata vide Sheodan Singh Vs.
Smt. Daryao Kunwar, AIR 1966 SC 1332.”

Source: Indian Kanoon

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