Order Of Dismissal Of Suit In Default Cannot Operate As Res Judicata: Supreme Court

The petition before the Apex Court was filed against the judgment of the Chhattisgarh High Court by which the Second Appeal filed by the respondents (original plaintiffs) came to be allowed, and the judgment passed by the First Appellate Court reversing the decree passed by the Trial Court came to be set aside.

The Division Bench of Justice J.B. Pardiwala and Justice R. Mahadevan observed, “It is, therefore, clear that an order of dismissal of a suit or application in default under Rule 2 or Rule 3 of Order IX of the C.P.C. is neither an adjudication or a decree nor it is an appealable order. If that is so, such order of dismissal of a suit under Rule 2 or Rule 3 of Order IX of the C.P.C. does not fulfill the requirement of the term “judgment” or “decree”, inasmuch as there is no adjudication. In our considered opinion, therefore, if a fresh suit is filed, then such an order of dismissal cannot and shall not operate a res judicata.”

Factual Background

The father of the original plaintiffs instituted a Civil Suit for a declaration, cancellation of the sale deed and a permanent injunction, which came to be dismissed under the provisions of Order IX Rule 2 of the Civil Procedure Code, 1908. The father then preferred an application under Order IX Rule 4 for the restoration of the suit, which also came to be dismissed. The matter was not carried further. The order passed by the Trial Court rejecting the application filed under Order IX Rule 4 of the C.P.C. attained finality.

Later, the original plaintiffs (legal heirs) instituted a fresh suit for the same reliefs. The issues framed by the Trial Court came to be answered in favour of the plaintiffs. The original defendants challenged such order before the District Court in First Appeal, which was allowed. The judgment and decree passed by the Trial Court were set aside.

The plaintiffs went before the High Court in the Second Appeal. The High Court, while allowing the Second Appeal, answered all three substantial questions of law in favour of the plaintiffs. The judgment of the First Appellate Court was set aside, and the judgment of the Trial Court came to be restored. Thus, the original defendants approached the Apex Court.

Reasoning

Explaining the law relating to Order IX Rule 4 of the C.P.C., which deals with the appearance of parties and consequences of non-appearance, the Bench placed reliance upon the judgment in Bhudeo vs. Musammat Baikunthi (1921) where the Privy Council has taken a view that the two remedies prescribed under Order IX Rule 4 of the C.P.C. are not mutually exclusive. “The plain reading of Order IX Rule 4 of the C.P.C. does not bar the filing of a fresh suit, of course, subject to limitation and if that were the intention, we might have found in it a provision similar to that in Order IX Rule 9 of the C.P.C. referred to above, which states that where a suit is dismissed under the Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action”, it said.

The Bench further noted that under Rule 4 of Order IX of the C.P.C., the legislature in express term has not precluded the plaintiff from filing a fresh suit on the same cause of action in the event suit is dismissed under Rule 2 or Rule 3 of Order IX of the C.P.C., whereas Rule 9 of Order IX debars the plaintiff from filing a fresh suit in a case where the suit is dismissed under Rule 8 of Order IX of the C.P.C. The only remedy provided for such dismissal is to file an application under Rule 9 of Order IX of the C.P.C. for the restoration of suit

“In the light of the provisions contained in Order IX and the law discussed hereinabove, it can be safely concluded that in case of dismissal of suit under Order IX Rule 4 of the C.P.C. the plaintiff has both the remedies of filing of fresh suit or application for restoration of the suit. If he chooses one remedy, he is not debarred from availing himself of the other remedy. Both these remedies are simultaneous and would not exclude either of them”, it held.

Another issue before the Bench was whether, after dismissal of a suit in default under Rule 2 and Rule 3 of Order IX of the C.P.C., a fresh suit is barred by the principle of res judicata. It was observed by the Bench that the principle of res judicata is based on the common law maxim “nemo debet bis vexari pro una et eadem causa”, which means that no man shall be vexed twice over the same cause of action. It is a doctrine applied to give finality to a lis.

The Bench further stated that a dismissal of a suit or application for default, particularly under Rule 2 or Rule 3 of Order IX of the C.P.C., is not the formal expression of an adjudication upon any right claimed or the defence set up in a suit. An order of dismissal of a suit or application in default is also not an appealable order as provided under Order XLIII of the C.P.C. As per Order XLIII C.P.C., orders passed under Order IX, Rule 9 of the C.P.C. or Order IX Rule 13 of the C.P.C. are made appealable, but order passed under Order IX Rule 4 of the C.P.C. is not appealable.

Thus, finding no ground to interfere with the impugned judgment, the Bench dismissed the Petition.

Cause Title: Amruddin Ansari (Dead)through Lrs & Ors. v. Afajal Ali & Ors (Neutral Citation: 2025 INSC 566)

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