Summary
Where a suit is dismissed for default under Order IX Rule 2 or 3 CPC and the plaintiff's application under Order IX Rule 4 to set aside the dismissal is rejected, a fresh suit on the same cause of action is still maintainable: the two remedies under Rule 4 are not mutually exclusive, Rule 4 contains no bar like that in Rule 9, and a dismissal for default is neither a decree nor an adjudication and so cannot operate as res judicata. The petition against the High Court's decree restoring the trial court's decree in the fresh suit was dismissed.
Issues
- Whether, after dismissal of an application under Order IX Rule 4 CPC for restoration of a suit dismissed for default, a fresh suit on the same cause of action is maintainable.
- Whether, after dismissal of a suit for default under Order IX Rule 2 or 3 CPC, a fresh suit is barred by res judicata.
Provisions considered
- Order IX Rule 4, Code of Civil Procedure, 1908Rule 4 permits a plaintiff whose suit is dismissed under Rule 2 or 3 either to bring a fresh suit (subject to limitation) or to apply to set aside the dismissal. Following the Privy Council in Bhudeo v. Musammat Baikunthi, the word 'or' does not make the remedies mutually exclusive; a plaintiff whose restoration application fails may still bring a fresh suit. (¶¶ 9, 10, 11, 12, 15, 16, 17, 21)
- Order IX Rules 8 and 9, Code of Civil Procedure, 1908Rule 9 expressly precludes a fresh suit on the same cause of action where a suit is dismissed under Rule 8 (plaintiff absent, defendant present), leaving restoration as the only remedy. The absence of any comparable bar in Rule 4 shows the legislature did not intend to preclude a fresh suit after a dismissal under Rule 2 or 3. (¶¶ 12, 13, 14, 15, 16, 17)
- Order IX Rules 2 and 3, Code of Civil Procedure, 1908The earlier suit was dismissed under Rule 2. A dismissal under Rule 2 or 3 is a dismissal for default involving no adjudication on the rights claimed or the defence set up. (¶¶ 3, 16, 17, 22, 26)
- Section 2(2), Code of Civil Procedure, 1908The definition of 'decree' requires a formal expression of an adjudication conclusively determining the parties' rights and expressly excludes any order of dismissal for default; a dismissal under Order IX Rule 2 or 3 is therefore not a decree. (¶¶ 25, 26)
- Section 2(9), Code of Civil Procedure, 1908'Judgment' means the statement of the grounds of a decree or order; an order of dismissal for default, involving no adjudication, does not satisfy this definition either. (¶¶ 24, 26)
- Order XLIII, Code of Civil Procedure, 1908Orders under Order IX Rule 9 and Rule 13 are made appealable, but an order under Order IX Rule 4 is not; a dismissal for default under Rule 2 or 3 is thus not an appealable order. (¶ 26)
Held
- The two remedies under Order IX Rule 4 CPC, a fresh suit or an application to set aside the dismissal, are not mutually exclusive. A plaintiff who in good faith applies to have the dismissal set aside and fails is not thereby penalised with loss of the right to bring another suit on the same facts. The Court agreed with the Privy Council's reading in Bhudeo v. Musammat Baikunthi and with the Allahabad and Patna High Courts in Govind Prasad v. Har Kishen and Mt. Balkesia v. Mahant Bhagwan Gir. (¶¶ 10, 11, 18, 19, 20, 21)
- A plain reading of Order IX Rule 4 does not bar a fresh suit, subject to limitation. Had that been intended, a provision like Order IX Rule 9, which precludes a fresh suit on the same cause of action where a suit is dismissed under Rule 8, would have been enacted. Under Rule 4 the legislature has not in express terms precluded a fresh suit after dismissal under Rule 2 or 3, whereas Rule 9 debars one after dismissal under Rule 8. (¶¶ 15, 16, 17)
- Res judicata rests on the maxim that no one should be vexed twice for the same cause and requires an adjudication of an issue by a court of competent jurisdiction. A dismissal for default under Order IX Rule 2 or 3 is not a formal expression of an adjudication on any right claimed or defence set up, is excluded from the definition of 'decree' in Section 2(2), is not appealable under Order XLIII and is not a 'judgment' under Section 2(9). Such an order therefore cannot operate as res judicata against a fresh suit. (¶¶ 22, 23, 24, 25, 26)
- On the evidentiary value of the Wajib Dava (Exhibit P-1), the Court was satisfied with the line of reasoning adopted by the High Court and saw no ground to interfere. (¶¶ 27, 28)
Result
Special leave petition dismissed; the High Court's judgment allowing the second appeal and restoring the trial court's decree in the fresh suit left undisturbed; pending applications disposed of.