The Supreme Court has dismissed the petition for Special Leave to Appeal filed by the original respondent against the judgment and order passed by the Learned High Court of Chhattisgarh allowing the Second Appeal filed by the Respondents (Original Plaintiff). Order Of Dismissal For Default Shall Not Bar Fresh Suit.

Order of Dismissal For Default Shall Not Bar Fresh Suit

In a significant judgment, the Supreme Court held that an order of dismissal of suit and application in default as provided under Order 43 of the CPC is not appealable order. It is further held that an order of dismissal of suit and application for default under Rule 2 and 3 of the Order 9 of the CPC is neither an adjudication or decree nor it is an appealable order, as such order of dismissal of a suit under Rule 2 and 3 of Order 9 of the CPC does not constitute a judgment or decree and therefore such an order of dismissal cannot and shall not be operated as res judicata. Order of dismissal for default shall not bar fresh suit. The fresh suit cannot be falls under the doctrine of res judicata .

The Supreme Court observed that if a fresh suit is dismissed for default by the learned Trial Court, such an order of dismissal cannot and shall not prevent the filling of a fresh suit .

Brief Facts

The Brief fact is that the original plaintiff ( father ) filed a Civil Suit in the Court of LD Civil Judge for declaration, cancellation, and permanent Injunction of the sale deed. The learned Court has dismissed the suit under the provision of the Order 9 Rule 2 of the Code of Civil Procedure, 1908(for short CPC). Aggrieved by an impugned judgment and order moved an application for restoration of the suit under Order 9 Rule 4 of the CPC, the learned Trial Court rejecting the application filed under Order 9 Rule 4 of the CPC in which the court said that the matter has been finalized.

Thereafter, the original plaintiff ( legal heirs ) filed a fresh suit in the Court of Civil Judge, First Class for the same action and same relief . In which the Trail Court ruled in favor of the plaintiff on all the aforementioned issues.

Being dissatisfied with the judgment and decree passed by the Trial Court, the original defendant challenged the same before the District Court in First Appeal. The First Appeal was allowed . The judgment and decree passed by the trial court were set aside.

The plaintiff being dissatisfied with the judgment and order passed by the learned First Appellate Court, the plaintiff preferred a Second Appeal before the High Court.

Legal Issues before High Court

The High Court formulated the following three important legal questions for its consideration:

1. “Whether the learned First Appellate Court was justified in holding that since the decree holder has not deposited the deficit court fees within the period allotted by the trial Court, the decree is not executable, particularly in view of the fact that the deficit court fees have been deposited by the plaintiff/decree holder with the permission of the trial Court?”

2. “Whether the finding of the first appellate Court that this suit was not maintainable in view of the principle of res judicata is justified in the absence of any evidence that the previous suit was between the same parties and for the same relief?

3. "Whether the finding of the appellate Court that the document entitled Ex.P.1 by which the lessee Abdul Razak has relinquished his right in favor of the plaintiff can be ignored merely on the ground that it has not been proven by examining the attesting witnesses, particularly in the light of the fact that it has not been opposed by the defendants?"

Considering all the above issues, the Hon'ble High Court allowed the Second Appeal and answered all the three important legal questions in favor of the plaintiff . The judgment and order passed by the first appellate court were set aside and the judgment and decree passed by the trail court came to be restored .

In the above circumstances, the original respondents moved a Special Leave to Appeal before this Court with present petition .

Contention of the Original Defendant (Petitioner)

The Learned Counsel appearing for the original defendant ( Petitioner ) submitted that according to him, the second suit itself was not maintainable. He submitted that once an application is dismissed under Order 9 Rule 4 of CPC . and if such order is not challenged before the High Court and attains finality, and then a second suit for the same action and for the same relief is not maintainable.

According to the Learned counsel the fresh suit filed by the plaintiff falls under the doctrine of res judicata .

Contention of the plaintiff (Respondent)

The Learned Senior Counsel appearing for the plaintiff ( Respondent ) submitted argued that no error has been committed by the High Court in passing the impugned judgment and order. It is further submitted that the High Court was right in holding/taking the view that the suit was maintainable and was in no way affected by the provisions of Order 9 Rule 4 of the CPC.

Order of dismissal for default shall not bar fresh suit

Court's Analysis and Reasoning

While considering the issues that arose before the Apex Court, the Court said that having heard the learned Counsel appearing for the parties and having perused material available on record. We have two questions for consideration:

i. Whether after the dismissal of the petition for restoration of suit under Order 9 Rule 4 of the CPC a fresh suit is maintainable?

ii. Whether after dismissal of the suit for default , a fresh suit is barred by res judicata ?

The Court interpreted the Order 9 Rule 4 of the CPC which deals with the consequences of appearance and non-appearance of parties . The Bench reliance on a decision of the Privy Council in Bhudeo Musammat Baikunthi on which the Privy Council took the view that the two remedies prescribed under Order 9 Rule 4 of the CPC are not mutually exclusive.

After analysis the Supreme Court observed that the plain reading of Order 9 Rule 4 of CPC ., it certainly does not bar the filing of a fresh suit subject to limitation and if that were intention, we might have found therein a provision similar to order 9 Rule 9 of CPC, referred to above, which states that where a suit is dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause action.

The Supreme Court further stated that in the light of the provisions contained in Order IX and the law discussed above, it can be safely concluded that in case of dismissal of the suit under Order 9 Rule 4 of CPC the plaintiff has both the remedies either to file a fresh suit or to apply for restoration of the suit. If he chooses one remedy, he is not debarred from availing the other remedy. Both these remedies are simultaneous and neither of them shall be excluded.

Order of Dismissal For Default Shall Not Bar Fresh Suit

The Supreme Court in the matter of Amruddin Ansari (Dead) through LRS & Ors vs. Afajal Ali & Ors. held that dismissal of a suit or application for default under Order 9 Rule 2 or Rule 3 of CPC is not a formal expression of adjudication on any right claimed or defense set up in the suit. An order dismissing a suit or application in default is also not an appealable order as provided under Order 43 of CPC. If we read Order 43 of CPC, we will find that orders passed under Order 9 Rule 9 of CPC or Order 9 Rule 13 of CPC are appealable but order passed under Order 9 Rule 4 of CPC is not appealable. Therefore, it is clear that an order dismissing a suit or application in default under Order 9 Rule 2 or Rule 3 of CPC is neither an adjudication nor is it an appealable order. If that is so, then the CPC does not have the power to dismiss a suit or application in default. Such an order of dismissal of the suit under Rule 2 or Rule 3 of Order 9 of the CPC does not satisfy the requirement of the word “judgment” or “decree”, as there is no adjudication. Therefore, if a fresh suit is filed, then, such an order of dismissal cannot and would not operate as a res judicata if a fresh suit is filed. Order Of Dismissal for Default Shall Not Operate As Res Judicata.

Resultantly, no ground to interfere with the impugned judgment passed by the High Court, this petition fails and is hereby dismissed .

Absence of Motive Cannot Ground for Acquittal

High Court Duty to Examine Under Section 313 CrPC

Supreme Court Ruling on Preliminary Inquiry

Order of Dismissal For Default Shall Not Bar Fresh Suit

Order of Dismissal For Default Shall Not Bar Fresh Suit