VERDICTUM.
IN
REPORTABLE
2025 INSC 566
IN THE SUPREME COURT OF INDIA
EXTRA-ORDINARY APPELLATE JURISDICTION
Petition(s) for Special Leave to Appeal (C) No.11442/2023
AMRUDDIN ANSARI (DEAD)THROUGH LRS & ORS. Petitioner(s)
VERSUS
AFAJAL ALI & ORS. Respondent(s)
O R D E R
J.B. PARDIWALA, J.
1. This petition arises from the judgment and order passed
by the High Court of Chhattisgarh at Bilaspur dated 24.10.2019
in Second Appeal No.424/2005 by which the Second Appeal filed
by the respondents herein (original plaintiffs) came to be
allowed and thereby, the judgment and order passed by the
First Appellate Court reversing the decree passed by the Trial
Court came to be set aside.
2. For the sake of convenience, the petitioners herein shall
be referred to as the original defendants and the respondents
herein shall be referred to as the original plaintiffs.
3. The facts giving rise to this petition may be summarized
as under:
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a. The history of this litigation goes something like this.
In the first instance, the father of the original plaintiffs
instituted a Civil Suit No.37A/1996 in the Court of Ld.
Civil Judge, Ramanujganj, District- Sarguja, Chhattisgarh
for declaration, cancellation of sale deed and a permanent
injunction. It appears from the materials on record that the
said suit came to be dismissed under the provisions of Order
IX Rule 2 of the Civil Procedure Code, 1908 (for short “the
C.P.C.”). In such circumstances, the father of original
plaintiffs preferred an application under Order IX Rule 4
for restoration of the suit. The said application under
Order IX Rule 4 of the C.P.C. 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.
b. Later, the original plaintiffs (legal heirs) instituted a
fresh suit bearing No.27A/2001 in the Court of Civil Judge,
1st Class, Ramanujganj, Tehsil Paal, District-Sarguja,
Chhattisgarh for the same reliefs.
c. The Trial Court framed the following issues:
“1. Whether the Plaintiffs are having ownership
right over the suit property mentioned in Appendix-A
attached to the suit?
2. Whether the executed Sale Deed dated
19.12.86 is having no effect on the plaintiffs being
fake, fabricated and illegal?
3. Whether the Plaintiffs are entitled for
grant of a decree of permanent injunction against the
defendants with respect to the suit land that the
Defendant Nos.1,2,3, 4 and 5 themselves and their
relatives, friends, servants and agents be restrained
from claiming ownership or entering into the suit
property or creating any hindrance thereupon?
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4. Whether daughters of Late Rahmat Ali are
necessary parties to the suit?
5. Whether the principal of res judicata is
applicable in the present suit?
6. Whether there is lesser court fee paid in
the suit?
7. Relief and costs?”
d. All the aforesaid issues came to be answered in favour of
the plaintiffs.
e. The original defendants being dissatisfied with the
judgment and decree passed by the Trial Court challenged the
same before the District Court in First Appeal. The First
Appeal came to be allowed. The judgment and decree passed by
the Trial Court was set aside.
f. Being dissatisfied with the judgment and order passed by
the First Appellate Court, the plaintiffs went before the
High Court in Second Appeal.
g. The High Court formulated the following three substantial
questions of law for its consideration:
“i) "Whether the learned first Appellate Court was
justified in holding that since the decree holder did
not deposit the deficit court fees within the period
allotted by the trial Court, the decree becomes in
executable, is correct particularly in view of the
fact that the deficit court fees has been deposited by
the plaintiff/decree holder with the permission of the
trial Court?"
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ii) "Whether the finding. of the first Appellate
Court that the instant suit was not maintainable in
view of the doctrine to res judicata, is justified in
the absence of any evidence that the earlier suit was
between the same parties and for the same relief?"
iii) "Whether the finding of the appellate Court
that the document titled as Vazib Dava of Ex.P.1, by
which the patta holder Abdul Rajak has relinquished
his right in favour of the plaintiffs could be ignored
only on the ground that the same has not been proved
by examining the attesting witnesses particularly in
the light of the fact that the same has not been
disputed by the defendants?”
h. The High Court, while allowing the Second Appeal answered
all the three substantial questions of law referred to above
in favour of the plaintiffs. The judgment and order passed
by the First Appellate Court was set aside and the judgment
and decree passed by the Trial Court came to be restored.
4. In such circumstances referred to above, the original
defendants are before this Court with the present petition.
5. We heard Mr. Mr. Abhinav Jaganathan, the learned counsel
appearing for the original defendants (petitioners) and
Ms. V. Mohana, the learned Senior Counsel appearing for the
respondent Nos.1 and 2 respectively (original plaintiffs).
6. The learned counsel appearing for the defendants
(petitioners) has three-fold submissions to canvass before us.
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First, according to him, the second suit itself was not
maintainable. He would submit that once an application under
Order IX Rule 4 of the C.P.C. stands rejected and if such
order is not challenged before the higher Court and attains
finality, then a second suit for the same cause of action and
for the very same relief is not maintainable. His second
submission is with respect to the evidentiary value of the
document i.e. Wajib Dava (Exhibit P-1). According to him, the
Wajib Dava of 1952 could be said to be hit by Section 54 of
the last principles of Mohammedan Law read with Section 6(a)
of the Transfer of the Property Act, 1882. He would also
submit that being an unregistered document, the same could not
have been read into evidence for the purpose of establishing a
valid title over the property. Thirdly, according to the
learned counsel the fresh suit filed by the plaintiffs could
be said to be hit by the doctrine of res judicata.
7. On the other hand, Ms. V. Mohana, the learned Senior
Counsel appearing for the plaintiffs would submit that no
error not to speak of any error of law could be said to have
been committed by the High Court in passing the impugned
judgment and order. She would submit that the High Court is
right in taking the view that the suit was maintainable and
was not hit in any manner by the provisions of Order IX Rule 4
of the C.P.C. As regards the document i.e. Wajib Dava (Exhibit
P-1), she submitted that the same has been very well
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considered by the High Court in all respects. In such
circumstances referred to above, the learned Senior Counsel
prayed that there being no merit in the petition, the same may
be dismissed.
ANALYSIS
8. Having heard the learned counsel appearing for the
parties and having gone through the materials on record, two
questions fall for our consideration:
i) Whether after the dismissal of the petition for
restoration of suit under Order IX Rule 4 of the C.P.C. a
fresh suit is maintainable?
ii) Whether after dismissal of the suit for default, a
fresh suit is barred by res judicata?
9. Order IX Rule 4 of the C.P.C. reads thus:
“ORDER IX -Appearance of parties and consequence
of non-appearance
4. Plaintiff may bring fresh suit or Court may
restore suit to file.- Where a suit is dismissed
under rule 2 or rule 3, the plaintiff may (subject
to the law of limitation) bring a fresh suit; or
he may apply for an order to set the dismissal
aside, and if he satisfies the Court that there
was sufficient cause for [such failure as is
referred to in rule 2], or for his non-appearance,
as the case may be, the Court shall make an order
setting aside the dismissal and shall appoint a
day for proceeding with the suit.”
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10. It appears that the High Court placed reliance on a
decision of the Privy Council in Bhudeo vs. Musammat
Baikunthi1. In the said decision, the Privy Council took the
view that the two remedies prescribed under Order IX Rule 4 of
the C.P.C. are not mutually exclusive. The Privy Council
looked into the prefix “or” and ultimately held as under:
"1. The point raised is whether the two remedies
allowed to a plaintiff whose suit has been dismissed
under Order IX, Rule 2 or 3, namely, the remedy of
bringing a fresh suit or applying to have the
dismissal set aside, are mutually exclusive. The words
of Order IX, Rule 4, are materially the same as the
words of Section 99, Act XIV of 1882, upon this point.
The wording is not very happy. The use of the word
"or" presents many difficulties. In spite of the fast
that the word "or" is used and in spite of the fast
that the remedy of bringing a fresh suit is placed
first and the remedy of having the order set aside is
plated second, I am of opinion that the lower
Appellate Court is right. I cannot read into the words
of the section the meaning that when a person, in good
faith believing his suit to have been wrongfully
dismissed, comes into Court to have that order set
aside and fails to succeed, that person insure the
penalty of not being permitted to bring another suit
upon the same facts. The selection of the remedy of
bringing a fresh suit involves the plaintiff in the
necessity of paying a fresh Court-fee and a man
would naturally wish to take his chance of getting his
suit restored and avoiding payment of a fresh Court-
fee. It does riot seem likely that it was the
intention of the Legislature that if be took this
chance, he was to be deprived of all other remedy in
event of failure. The whole of the argument on the
side of the appellant practically rests upon the use
of the solitary word "or," and I do not think that
there is sufficient force in that argument to support
the appellant's contention. I, therefore, dismiss this
appeal with costs."
1 (1921) 63 I.C. 239
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11. We are in respectful agreement with the view taken by the
Privy Council as regards the interpretation of Order IX Rule 4
of the C.P.C.
12. There is one another reason to take the view that a fresh
suit is maintainable even after the rejection of the
application filed under Order IX Rule 4 of the C.P.C., keeping
in mind Order IX Rule 8 and Order IX Rule 9 respectively of
the C.P.C.
13. Order IX Rule 8 of the C.P.C. reads thus:
“8. Procedure where defendant only appears— Where the
defendant appears and the plaintiff does not appear
when the suit is called on for hearing, the Court
shall make an order that the suit be dismissed, unless
the defendant admits the claim or part thereof, in
which case the Court shall pass a decree against the
defendant upon such admission, and, where part only of
the claim has been admitted, shall dismiss the suit so
far as it relates to the remainder.”
14. Order IX Rule 9 of the C.P.C. reads thus:
“9. Decree against plaintiff by default bars fresh
suit— (1) Where a suit is wholly or partly dismissed
under rule 8, the plaintiff shall be precluded from
bringing a fresh suit in respect of the same cause of
action. But he may apply for an order to set the
dismissal aside, and if he satisfies the Court that
there was sufficient cause for his non-appearance when
the suit was called on for hearing, the Court shall
make an order setting aside the dismissal upon such
terms as to costs or otherwise as it thinks fit. and
shall appoint a day for proceeding with suit.
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(2) No order shall be made under this rule unless
notice of the application has been served on the
opposite party.”
15. 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.
16. The basic difference between the two provisions i.e. Rule
4 and Rule 9 of Order IX CPC is that in the case where the
suit is dismissed under Rule 2 or Rule 3 of Order IX, the
remedy provided is under Rule 4 of Order IX of the C.P.C. In
case of such dismissal, the plaintiff either brings a fresh
suit on the same cause of action or he may apply for setting
aside the order of dismissal and for restoration of suit.
Whereas if the suit is dismissed under Rule 8 of Order IX of
the C.P.C., the plaintiff cannot bring a fresh suit on the
same cause of action. The only remedy available to the
plaintiff is to move an application for setting aside the
order of dismissal and for restoration of suit.
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17. From bare reading of the aforesaid two provisions i.e.
Rule 4 and Rule 9 of Order IX of the C.P.C., it is manifestly
clear 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 restoration of suit.
18. In the case of Govind Prasad v. Har Kishen reported in
AIR 1929 Allahabad 131, a similar question arose for
consideration as to the maintainability of the second suit. In
that case the suit filed by the plaintiff was dismissed under
Order IX Rule 3 of the C.P.C., in consequence of neither party
having appeared when the suit was called for hearing. The
plaintiff-appellant to have the suit restored but the
restoration application was dismissed. The plaintiff then
brought a new suit upon the same cause of action. The learned
Judge dismissed the suit holding that the same is not
maintainable. In the Civil Revision filed before the Allahabad
High Court, the learned Judge Weir, following the earlier
decisions (39 I.C.191 and 63 I.C.239), set aside the order of
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dismissal of suit and held that a fresh suit on the same cause
of action is maintainable.
19. In the case of Mt. Balkesia v. Mahant Bhagwan Gir
reported in AIR 1937 Patna 9, a similar question came for
consideration before a Division Bench of the Patna High Court.
In that case also taking the similar view the learned Judge
James, observed:
“Mr. Khurshaid Husnain argues, in the second place, that
the present suit should be regarded as barred by reason
of the provisions of O.9, R. 4. O.9, R.4, provides that
where a suit is dismissed under R. 2, or R. 3, the
plaintiff may bring a fresh suit, or he may apply for an
order to set the dismissal aside. Mr. Khurshaid Husnain
argues that these two provisions are mutually exclusive,
so that if the plaintiff elects to avail himself of his
right to apply to have the order of dismissal set aside,
he is thereby precluded from availing himself of the
right to institute a fresh suit. The only decisions in
point which have been brought to our notice by Mr.
Khurshaid Husnain are adverse to this argument : 63 I C
239 of Stuart, J., A I R 1926 All 678 of Daniels, J.,
and.50) All 837 of Weir, J., all of the Allahabad High
Court. In all these cases it has been held that the
alternative provisions of R.4 are not mutually
exclusive, and that a plaintiff whose application for a
restoration of his suit has been dismissed is not
precluded from instituting a fresh suit. I do not
consider that any ground has been made out which
justifies us in differing from the view expressed by the
learned Judges whom I have named. It appears to us that
a reasonable reading of the rule provides that the
plaintiff may bring a fresh suit or he may apply for a
setting aside the dismissal. If he satisfies the Court
and obtains an order setting aside the dismissal, he
proceeds with his original suit. If having applied for
an order to set aside the order of dismissal, he fails
to satisfy the Court and his application is dismissed,
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he is left to his alternative remedy which is that he
may, subject to the law of limitation, bring a fresh
suit.”
20. Agreeing with the view, the learned Judge Rowland, has
observed:
“Rowland, J.—I agree. With reference to the argument
that the dismissal of a suit under O. 9, R. 3, Civil P.
C., may, coupled with the dismissal of an application
for rehearing, operate to preclude the plaintiff from
suing again on the same cause of action, I would like to
add a few words. It seems to me that S. 9. Civil P.C.,
is fatal to the appellants' argument. This section
declares that the Courts shall have jurisdiction to try
all suits of a civil nature excepting suits of which
their cognizance is either expressly or impliedly
barred. That is subject to such provisions as those of
S. 11 which bars suits on matters already judiciously
decided between the parties or of O. 9, R. 9, which
precludes a plaintiff from suing again on the same cause
of action where his suit has been dismissed under R. 8,
that is to say on appearance of the defendant and in the
absence of the plaintiff. In the absence of some such
provision as that with which O. 9, R. 9 commences, a
dismissal under O. 9, R. 3 would still, in my opinion,
not operate to preclude the plaintiff from suing again
even if O. 9, R. 4 did not expressly save his right of
suit. R. 4 in effect does not create but declares the
right of bringing a fresh suit while at the same time
permitting the plaintiff in the alternative to proceed
with his original suit. The former option the plaintiff
has as of right; the other option is available to him
only if he can satisfy the Court that he had sufficient
cause for the non-appearance or other default which led
to the dismissal of the suit. On the other points I have
nothing to add.”
21. In the light of the provisions contained in Order IX and
the law discussed hereinabove, it can be safely concluded that
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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.
22. The next question i.e. question No. (II), that falls for
consideration is as to whether after dismissal of 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.
23. 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. In other words, if an issue
involved in a suit is finally adjudicated by a Court of
competent jurisdiction, the same issue in a subsequent suit
cannot be allowed to be re-agitated. It is, therefore, clear
that for the application of principle of res judicata, there
must be an adjudication of an issue in a suit by a court of
competent jurisdiction.
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24. The term “judgment” has been defined in Section 2(9) of
the C.P.C. which means a statement given by a Judge of the
grounds of a decree or order.
25. The term “decree” has been defined under Section 2(2) of
the C.P.C. which reads as under : -
“(2) “Decree” means the formal expression of an
adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of the
parties with regard to all or any of the matters in
controversy in the suit and may be either preliminary or
final. It shall be deemed to include the rejection of a
plaint and the determination of any question within
section 144, but shall not include-
(a) any adjudication from which an appeal lies as an
appeal from an order, or
(b) any order of dismissal for default.”
26. From a plain reading of the term “decree”, it is
manifestly clear that to constitute a decree, there must be a
formal expression of an adjudication which conclusively
determines the right of the parties with regard to all or any
of the matters in controversy in the suit, but the decree
shall not include any adjudication from which an appeal lies
as an appeal from an order or any order of dismissal for
default. It is, therefore, evidently clear that a dismissal of
a suit or application for default particularly under Rule 2 or
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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 appealable order as provided under
Order XLIII of the C.P.C. If we read Order XLIII C.P.C., we
will find that 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. 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.
27. So far as the document Wajib Dava (Exhibit P-1) is
concerned, we are convinced with the line of reasoning
assigned by the High Court.
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28. In view of the aforesaid, we see no good ground to
interfere with the impugned judgment passed by the High Court.
In the result, this petition fails and is hereby dismissed.
29. Pending application(s), if any, shall stand disposed of.
……………………………………………………….J.
(J.B. PARDIWALA)
……………………………………………………….J.
(R. MAHADEVAN)
NEW DELHI.
22 APRIL 2025.
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