2025 INSC 566 REPORTABLE

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,

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st

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

Baikunthi

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. 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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