The Supreme Court recently ruled that the dismissal of a suit or application for default under Order IX Rule 2 or Rule 3 of the Civil Procedure Code (CPC) does not stop the filing of a fresh suit on the same cause of action. The Court clearly stated that such dismissal is not treated as a judgment or decree, and therefore, the rule of res judicata does not apply.
“An order of dismissal of a suit or application in default under Rule 2 or Rule 3 of Order IX CPC is neither an adjudication nor a decree, nor is it an appealable order. Therefore, if a fresh suit is filed, such an order of dismissal shall not operate as res judicata,” the Court observed.
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The Bench of Justices J.B. Pardiwala and R. Mahadevan gave this ruling in the case titled Amruddin Ansari (Dead) Through LRs & Ors. vs. Afajal Ali & Ors. The original plaintiff’s father had filed a suit seeking declaration and permanent injunction, but the suit was dismissed under Order IX Rule 2 CPC due to the non-appearance of parties. Later, an application under Order IX Rule 4 for restoration was also dismissed, and no challenge was made to that dismissal.
Afterward, the legal heirs filed a fresh suit for the same reliefs. The Trial Court allowed the suit, but the First Appellate Court reversed this decision, stating it was barred by res judicata. The High Court, however, restored the Trial Court's decision, leading the defendants to approach the Supreme Court.
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The Supreme Court explained that the dismissal under Rule 2 or Rule 3 of Order IX CPC does not decide any rights or claims between the parties. Since it is not a decision on the merits, it does not fulfill the requirement of a "judgment" or "decree" as defined under the CPC.
“Dismissal of a suit for default under Rule 2 or Rule 3 is not a formal adjudication on the rights claimed or defenses set up in a suit. Therefore, it cannot attract the bar of res judicata,” the Court highlighted.
The Court also compared Rule 4 with Rule 9 of Order IX CPC. While Rule 9 bars the filing of a fresh suit after dismissal under Rule 8, Rule 4 allows a fresh suit if a case is dismissed under Rule 2 or 3, subject to the law of limitation.
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In addition, the Court noted that the document Wajib Dava (Exhibit P-1) was properly considered by the High Court. Objections raised regarding its evidentiary value were rejected, as no substantial error was found in how the High Court dealt with the document.
“We find no legal flaw in the High Court’s approach in treating the Wajib Dava (Exhibit P-1) appropriately,” the Court remarked.
Case Title: AMRUDDIN ANSARI (DEAD)THROUGH LRS & ORS. VERSUS AFAJAL ALI & ORS.
Appearance:
For Petitioner(s) :Mr. Vinay P. Tripathi, Adv. Mr. B. Shravanth Shanker, AOR Mr. Abhinav Jaganathan, Adv. Mr. B. Yeshwanth Raj, Adv. Mrs. Preeti Shukla, Adv.
For Respondent(s) :Ms. V. Mohana, Adv. Mr. Kaustubh Shukla, AOR Ms. Praveen Kumar Singh, Adv. Ms. Pushpanjali Singh, Adv. Ms. Bhavya Pande, Adv.
