Case Note & Summary
The case involves a civil revision application filed by Ronnie Lawrence Fernandes (applicant) against Smt. Hoshbanoo Aspi Irani and another (respondents) concerning the maintainability of a second eviction suit. The respondents, owners and landlords of the suit premises, had allowed the applicant's father to occupy the premises as an employee. After the father's death, the applicant was permitted to stay on compassionate grounds but failed to vacate, leading the respondents to file a suit for possession. The applicant contested the suit, arguing that a previous suit (RCS No.632 of 1988) filed by the respondents against his father for eviction on the same grounds had been dismissed in default of appearance of both parties. He contended that the second suit was barred by Order 9 Rule 9 of the Code of Civil Procedure, 1908 (CPC). The trial court framed a preliminary issue on maintainability and held that the second suit was maintainable. Aggrieved, the applicant filed the present revision. The High Court examined the record, including the certified copy of the plaint and roznama of the earlier suit, which showed that on 11 January 2000, both parties and their advocates were absent, and the suit was dismissed under Order 9 Rule 3 CPC. The court analyzed Order 9 Rules 3 and 8 CPC, noting that Rule 3 applies when neither party appears, while Rule 8 applies when only the defendant appears. The bar under Order 9 Rule 9 CPC applies only to dismissals under Rule 8, not Rule 3. Since the earlier suit was dismissed under Rule 3, the subsequent suit was not barred. The court found no error in the trial court's decision and dismissed the revision application, upholding the maintainability of the second suit.
Headnote
A) Civil Procedure - Res Judicata - Order 9 Rule 9 CPC - Bar on Second Suit - The bar under Order 9 Rule 9 CPC applies only when a suit is dismissed under Order 9 Rule 8 (plaintiff absent, defendant present). Where the earlier suit is dismissed under Order 9 Rule 3 (neither party appears), the plaintiff is not precluded from filing a fresh suit on the same cause of action. The court held that since the earlier suit RCS No.632/1988 was dismissed under Order 9 Rule 3, the subsequent suit was maintainable. (Paras 5-7)
Issue of Consideration
Whether a second suit for possession on the same cause of action is barred by Order 9 Rule 9 of the Code of Civil Procedure, 1908 when the earlier suit was dismissed under Order 9 Rule 3 (neither party appearing) as opposed to Order 9 Rule 8 (plaintiff absent, defendant present).
Final Decision
The High Court dismissed the civil revision application, upholding the trial court's order that the second suit for possession was maintainable and not barred by Order 9 Rule 9 CPC.
Law Points
- Order 9 Rule 9 CPC applies only when suit dismissed under Order 9 Rule 8 (plaintiff absent
- defendant present)
- not under Rule 3 (both absent)
- second suit on same cause of action not barred when earlier suit dismissed under Rule 3
- preliminary issue on maintainability correctly decided against applicant
