Saturday, 14 September 2019

Supreme Court: Decree Against Plaintiff By Default Bars Fresh Suit On Same Cause Of Action By Successor In Title

 After hearing learned counsel for the parties, it is apparent
from the order of dismissal of the prior suit that it was dismissed
under the provisions of Order IX Rule 8 of the CPC as the counsel
for defendants was present and counsel for the plaintiffs was
absent. In view of the provisions contained in Order IX Rule 9
decree against plaintiffs by default bars fresh suit. Order IX Rule
9 is extracted hereunder:-
“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 the suit.
(2) No order shall be made under this rule unless
notice of the application has been served on the
opposite party.”
7. In view of the aforesaid, High Court erred in law in holding
that the subsequent suit was based on different cause of action, as
such it was maintainable. The impugned judgment and order is
patently illegal. Thus, it is set aside and the suit is ordered to
be dismissed as it was not maintainable. The purchaser is sailing
in the same boat as that of the original plaintiffs, he cannot be
said to be having better rights than the original plaintiffs.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 6424/2019

MAYANDI  Vs  PANDARACHAMY 

Dated:AUGUST 19, 2019.

1. Leave granted.
2. The judgment and decree passed by the High Court is liable to
be set aside on the short and singular ground that in the previous
suit i.e. Original Suit No.85/1996 a similar relief was prayed by
Pechimuthu S/o. Arumgasamy Thevar, Minor Manimegalai D/o.
Pechimuthu, Thilagavathi (Minor) D/o. Pechimuthu and Arul Pandian
(Minor) D/o. Pechimuthu. Prayer was made for declaration of title
and for permanent injunction on the basis of Will dated 05.12.2004
executed by Sadaiyappa Konar which became operative on his death on
20.02.1995. O.S. No.85 of 1996 was filed in which following prayer
was made:-
“A. declaring the plaintiffs 2 to 4 is title to
the plaint 1st schedule property.
B. granting the consequential relief of permanent
prohibitary injunction restraining the defendants
from disturbing the plaintiffs title, possession
and enjoyment of the plaint 1st schedule property.
C. granting permanent prohibitary injunction
restraining the defendants from sub letting the 2nd
schedule house without the written permission of
the plaintiff.
D. awarding the costs of this suit to the
plaintiffs.”
3. It was on the basis of the Will, Civil Suit No.85/1996 was
filed. It was dismissed vide order dated 16.03.2001, when the
counsel for the plaintiffs was absent and the counsel for the
defendants was present in the Court.

4. Plaintiff Nos.2, 3 and 4 filed the second suit i.e. Suit
No.1106/2004 against the defendants. The prayer was made for
permanent injunction on the basis of the Will only. After filing
of the suit, Respondent No.1 purchased the property from the
original plaintiffs.
5. The High has decreed the suit of the plaintiffs by the
impugned judgment and decree, while allowing the second appeal.
6. After hearing learned counsel for the parties, it is apparent
from the order of dismissal of the prior suit that it was dismissed
under the provisions of Order IX Rule 8 of the CPC as the counsel
for defendants was present and counsel for the plaintiffs was
absent. In view of the provisions contained in Order IX Rule 9
decree against plaintiffs by default bars fresh suit. Order IX Rule
9 is extracted hereunder:-
“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 the suit.
(2) No order shall be made under this rule unless
notice of the application has been served on the
opposite party.”
7. In view of the aforesaid, High Court erred in law in holding
that the subsequent suit was based on different cause of action, as
such it was maintainable. The impugned judgment and order is
patently illegal. Thus, it is set aside and the suit is ordered to
be dismissed as it was not maintainable. The purchaser is sailing
in the same boat as that of the original plaintiffs, he cannot be
said to be having better rights than the original plaintiffs.
8. The appeal is, accordingly, allowed.

9. Pending application(s), if any, shall stand disposed of.
...........................J.
[ARUN MISHRA]
...........................J.
[M.R. SHAH]
NEW DELHI;
AUGUST 19, 2019.

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