Case Note & Summary
The petitioners, as plaintiffs, filed a civil suit O.S.No.172 of 2018 before the District Munsif Court, Tindivanam, seeking relief. The suit was dismissed for default on August 16, 2022, when neither the plaintiffs nor the defendants appeared. The plaintiffs then filed a fresh suit on the same cause of action, which was opposed by the defendants on the ground that it was barred by Order 9 Rule 9 CPC. The trial court dismissed the plaintiffs' application in I.A.No.225 of 2018, holding that the fresh suit was not maintainable. Aggrieved, the plaintiffs filed the present civil revision petition under Article 227 of the Constitution of India. The legal issue was whether the dismissal of the earlier suit was under Order 9 Rule 8 or Order 9 Rule 3 CPC, and whether the bar under Order 9 Rule 9 applied. The High Court examined the record and found that the earlier suit was dismissed for default under Order 9 Rule 3 CPC, as both parties were absent. The court held that Order 9 Rule 9 CPC only bars a fresh suit when the dismissal is under Order 9 Rule 8 CPC, i.e., after the defendant has appeared. Since the defendants had not appeared in the earlier suit, the bar did not apply. However, the court noted that the proper remedy for the plaintiffs was to file an application for restoration under Order 9 Rule 4 or 9 CPC, not a fresh suit. The court allowed the revision petition, set aside the trial court's order, and restored the original suit to the file of the trial court, subject to payment of costs of Rs.5,000 to the respondents.
Headnote
A) Civil Procedure Code - Order 9 Rule 9 - Bar on Fresh Suit - Dismissal for Default - The bar under Order 9 Rule 9 CPC applies only when a suit is dismissed under Order 9 Rule 8 CPC (for non-appearance of plaintiff after defendant has appeared). In the present case, the suit was dismissed for default under Order 9 Rule 3 CPC (non-appearance of both parties), and hence the bar does not apply. The proper remedy for the plaintiff is to file an application for restoration under Order 9 Rule 4 or 9 CPC, not a fresh suit. (Paras 5-8) B) Civil Procedure Code - Order 9 Rule 4 - Restoration of Suit - Dismissal for Default - When a suit is dismissed for default under Order 9 Rule 3 CPC, the plaintiff may apply for restoration under Order 9 Rule 4 CPC within 30 days. The court has discretion to restore the suit on sufficient cause shown. (Para 6) C) Civil Procedure Code - Order 9 Rule 9 - Applicability - Distinction between Order 9 Rule 3 and Rule 8 - The key distinction is whether the defendant has appeared. If the defendant has not appeared, dismissal is under Order 9 Rule 3; if the defendant has appeared, dismissal is under Order 9 Rule 8. The bar under Order 9 Rule 9 applies only to the latter. (Paras 5-7)
Issue of Consideration
Whether the suit was dismissed for default under Order 9 Rule 8 CPC or under Order 9 Rule 3 CPC, and whether the remedy of filing a fresh suit is barred by Order 9 Rule 9 CPC.
Final Decision
The High Court allowed the civil revision petition, set aside the order of the trial court dated August 16, 2022, and restored the suit O.S.No.172 of 2018 to the file of the District Munsif Court, Tindivanam, subject to payment of costs of Rs.5,000 to the respondents.
Law Points
- Order 9 Rule 9 CPC bars a fresh suit on same cause of action only after dismissal under Order 9 Rule 8 CPC
- not after dismissal for default under Order 9 Rule 3 CPC
- Restoration of suit dismissed for default is governed by Order 9 Rule 4 or 9 CPC
- Article 227 of Constitution of India
- 1950
