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.

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Whether suit filed by assignee of plaintiff whose suit is dismissed is maintainable on same cause of action?

 Another legal aspect to be mentioned is that by virtue of the statement of law in Order IX Rule 9 of the Code, where a suit is wholly or partly dismissed under Rule 8 of Order IX, 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.

23. In this context, a question a may arise whether the plaintiff, who is only an assignee from the plaintiff in O.S. No. 157 of 2003, is barred from instituting a fresh suit on the same cause of action? This question was considered by the Supreme Court elaborately in Suraj Ratan Thirani and Others v. The Azamabad Tea Co. & Others (MANU/SC/0231/1964 : AIR 1965 SC 295). It was observed that the term "cause of action" is to be construed with reference rather to substance than to the form of action. It was held that if essential bundle of facts on which the plaintiff based his/her title and the right to relief were identical in two suits, then the bar under Order IX Rule 9 of the Code will apply to the second suit, even if it was brought by an assignee from the plaintiff in the first suit. Following quotation may be relevant for our purpose:

"We are not however impressed by the argument that the ban imposed by Order 9 Rule 9 creates merely a personal bar or estoppel against the particular plaintiff suing on the same cause of action and leaves the matter at large for those claiming under him. Beyond the absence in Order 9 Rule 9 of the words referring 'to those claiming under the plaintiff' there is nothing to warrant this argument. It has neither principle, nor logic to commend it......... The rule would obviously have no value and the bar imposed by it would be rendered meaningless, if the plaintiff whose suit was dismissed for default had only to transfer the property to another and the latter was able to agitate rights which his vendor was precluded by law from putting forward."

24. The above said principle was followed in M/s. Parasram Harnand Rao v. M/s. Shanti Parsad Narinder Kumar Jain and another (MANU/SC/0479/1980 : (1980) 3 SCC 565).

25. It is therefore well settled that if there is identity of cause of action between the earlier suit, which was dismissed for default, and the present suit, though it is instituted by an assignee of the plaintiff in the earlier suit, the bar under Order IX Rule 9 of the Code will be attracted. Even though the plaintiff in this case may contend that the second suit by the assignee of the plaintiff in O.S. No. 157 of 2003 is filed on a different cause of action, it may be an insurmountable task for him to claim any benefit because there is a clear identity of cause of actions in both the suits.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 855 of 2016 (B)

Decided On: 06.01.2017

E.N. Chandran Vs. Valsan Matathil

Hon'ble Judges/Coram:

A. Hariprasad, J.

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Whether O 9 R 9 of CPC is applicable to partition suit?

The learned counsel for the defendant in all fairness cited the decision of the Hon'ble Himachala Pradesh High Court reported in AIR 2003 Himachal Pradesh 32 [Asha Sharma and others v. Amar Nath and others] and submitted that so far partition suits are concerned, the cause of action is held to be a continuing one.

12. The learned counsel for the plaintiffs cited the following decision:

(i) AIR 2003 Himachal Pradesh 32 [Asha Sharma and others v. Amar Nath and others]

As such, both the decisions would highlight and spotlight the fact that in a partition suit, the cause of action is a continuing one and hence Order 9 Rule 9 of CPC cannot be pressed into service. I would also like to agree with the said proposition, in view of the fact that the valuable right of a co-sharer should not be deprived because for one reason or other, the earlier suit might not have been able to be prosecuted further to its logical end.

Madras High Court

Balamani vs S.Balasundaram on 20 April, 2009

Coram:

THE HONOURABLE MR.JUSTICE G.RAJASURIA

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