Code of Civil Procedure, 1908 – Or.IX, R.4 – Whether after the dismissal of the petition for restoration of suit u/Or. IX R.4 of the CPC a fresh suit is maintainable:
Held: From bare reading of the two provisions i.e. R.4 and R.9 of Or. IX of the CPC, it is manifestly clear that u/R. 4 of Or. IX of the CPC, 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 R.2 or R.3 of Or. IX of the CPC, whereas R.9 of Or. IX debars the plaintiff from filing a fresh suit in a case where the suit is dismissed under R.8 of Or. IX of the CPC – The only remedy provided for such dismissal is to file an application u/R.9 of Or. IX of the CPC for restoration of suit – In case of dismissal of suit u/Or. IX R.4 of the CPC 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. [Paras 17, 21] Code of Civil Procedure, 1908 – Whether after dismissal of suit in default u/R.2 and R.3 of Or. IX of the CPC, a fresh suit is barred by the principle of res judicata:
Held: 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 – According to this doctrine, an issue or a point once decided and attends finality, should not be allowed to be reopened and re-agitated in a subsequent suit – A dismissal of a suit or application for default particularly u/R.2 or R.3 of Or. IX of the CPC 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 appealable order as provided u/Or. XLIII of the CPC – If Or. XLIII CPC is read, one will find that orders passed u/Or. IX, R.9 of the CPC or Or. IX R.13 of the CPC are made appealable, but order passed u/Or. IX R.4 of the CPC is not appealable – It is, therefore, clear that an order of dismissal of a suit or application in default u/R.2 or R.3 of Or.IX of the CPC is neither an adjudication or a decree nor it is an appealable order – If that is so, such order of dismissal of a suit u/R.2 or R.3 of Or. IX of the CPC does not fulfill the requirement of the term “judgment” or “decree”, inasmuch as there is no adjudication – In considered opinion of this Court, therefore, if a fresh suit is filed, then such an order of dismissal cannot and shall not operate a res judicata. [Paras 23, 26]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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