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 case against Hindu undivided family will abate on death of its Karta?

The matter can be looked at from another point of view also. Rule 10, Order 30. Civil P.C. provides that a Hindu undivided family carrying on business under any name, may be sued in such name or style as if it were a firm name, and, in so far as the nature of such case permits, all rules under Order 30 shall apply accordingly. Rule 4 of Order 30. Civil P.C. provides that notwithstanding anything contained in Section 45 of the Contract Act, 1872, where two or more persons may sue or be sued in the name of a firm under the foregoing provisions and any of such person dies, whether before the institution or during the pendency of any suit, it shall not be necessary to joint the legal representatives of the deceased as a party to the suit. It is not disputed that Messrs. Rai Bahadur Kishore Chand and Sons was a Joint Hindu family concern and had been sued through its Karta, Rai Bahadur Kishore Chand. In view of the said provision of Rule 4. on the death of the Karta, it was not necessary to bring on record his legal representatives because the joint Hindu family concern continues to be a party in spite of the death of the Karta. So the question of the abatement of the appeal did not arise and the name of the new Karta could be impleaded as a party any time. It is therefore, not possible to sustain the view of the learned single Judge that the appeal had abated on the death of Rai Bahadur Kishore Chand, the Karta of the joint Hindu family concern and the impugned judgment is accordingly reversed.

IN THE HIGH COURT OF PUNJAB AND HARYANA

Decided On: 21.03.1983

 Shila Wanti  Vs. R.B. Kishore Chand and Ors.

Hon'ble Judges/Coram:

S.S. Sandhawalia, C.J. and Satya Parkash Goyal, J.

Citation: AIR 1984 P& H 35

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