SBCMA No.1792/2007 Sahab Singh & Anr. Vs. Maya Ram & Ors. 1 SBCMA No.1792/2007 Sahab Singh & Anr. Vs. Maya Ram & Ors. DATE OF ORDER : - 15.12.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.Narendra Rajpurohit, for the appellants. Mr. Sanjeev Johari ] Mr. HS Sidhu ], for the respondents. <><><> Heard learned counsel for the parties. The appellants are aggrieved against the rejection of their claim petition vide order dated 16th March, 2001. The appellants' claim petition was dismissed by the Motor Accident Claims Tribunal, Hanumangarh after holding that the claim petition filed by the appellants is though within period of limitation but since his earlier claim case no.306/83 was dismissed for non-prosecution vide order dated 6.1.1995, therefore, the second claim petition is not maintainable in view of the bar under Order 9 Rule 9 CPC. SBCMA No.1792/2007 Sahab Singh & Anr. Vs. Maya Ram & Ors. 2 According to learned counsel for the appellants earlier claim case no.306/1983 was dismissed on 16.1.1995 when neither appellants nor appellants' advocate was present before the tribunal. However, some documents were also not filed alongwith the claim petition and, therefore, the claim tribunal decided not to proceed with the claim petition and dismissed the claim and, therefore,the order of the claim tribunal passed in claim case no.306/1983 was not a decision on the merit of the case nor it was passed in the presence of the non-claimants who were not even issued notice of the claim petition. In view of the above reason, according to learned counsel for the appellants, the claimants-appellants had two options, under Order 9 Rule 4 CPC, one he could have filed fresh claim petition within period of limitation or could have sought for setting aside of the dismissal order dated 6.1.1995. One right of the appellants-claimants was not dependent upon any other like for maintaining fresh claim he should have obtained the order of setting aside of dismissal of his earlier claim petition. SBCMA No.1792/2007 Sahab Singh & Anr. Vs. Maya Ram & Ors. 3 Learned counsel for the respondent-Insurance Company Shri Sanjeev Johari and learned counsel for the respondent-owner of the vehicle Shri Sidhu vehemently submitted that Order 17 very specifically empowers the court to not only dismiss the suit under Order 9 but empowers the court to pass any other order, which the court/tribunal may think fit. In view of the above reason, the facts if taken into account then it is clear that the appellants-claimants not only did not appear before the tribunal, but they failed to produce evidence and, therefore, in that situation, claimants-appellants had only one option and that was for obtaining the order of dismissal of their claim petition set aside by moving appropriate application and had no right to submit a new claim petition. Learned counsel Shri Johari vehemently submitted that as per Section 166 of the Motor Vehicles Act no claimant has right to file successive or repeated claim petitions on the basis of one cause of action and, therefore, the second claim petition of the claimants was not maintainable. SBCMA No.1792/2007 Sahab Singh & Anr. Vs. Maya Ram & Ors. 4 I considered the submissions of learned counsel for the parties and perused the relevant orders dated 6.1.1995 and impugned order and also perused the provisions of law referred above. This is general principle of law that even if there is no specific law even then it is in the public interest that no one should be permitted to file repeated and successive claim for the same cause of action. The law has taken care of it by making provisions for not entertaining the separate claim petitions or the suits filed on the same cause of action and relevant provisions are the Section 10 of the CPC, which bars trial of second suit. Section 11 of CPC bars giving decision by the court on a issue which has already been decided. In a case where any decision is given on merit that becomes resjudicata between the parties in not only subsequent litigation but in some situation in the same proceedings also. The issue involved in this appeal is entirely different. It is not filing of the successive claim petition or repeated claim petition by the claimants without any provision of SBCMA No.1792/2007 Sahab Singh & Anr. Vs. Maya Ram & Ors. 5 law. The Order 9 Rule 4 CPC very specifically allows filing of the second claim (suit) by the same plaintiff on the basis of same facts and on the basis of same cause of action provided his suit/claim has been dismissed under Rule 2 or Rule 3 of Order 9 CPC. Under Rule 2 of Order 17 there is also a provisions by which the court may adjourn the suit even in case when party or any of them fails to appear before the court and this very provision empowers the court to proceed and dispose of the suit in any of the mode i.e., either under order 9 or make specific order under Rule 2 of Order 17 itself. The explanation appended to Rule 2 of Order 17 makes it very clear that the suit can be decided by the court where evidence or substantial portion of the evidence of any party has already been recorded and such party failed to appear then the court may proceed to decide the suit as though the party is present. Here in this case, none of the parties was present and Rule 8 of Order 9 provides that where defendant appears and plaintiff does not appear then the court may dismiss the suit or may pass decree to the extent the defendant admitted claim of the SBCMA No.1792/2007 Sahab Singh & Anr. Vs. Maya Ram & Ors. 6 plaintiff. If suit is dismissed in that situation i.e., under Rule 8 of Order 9 then as per Rule 9 of Order 9, the plaintiff (claimant) is precluded from bringing fresh suit in respect of same cause of action. Here in this case, facts clearly reveals that no notice was issued to the non- claimants and claim case no.306/83 was dismissed by the claims tribunal for non-filing of the certain documents and non-appearance of the claimants. Therefore, the bar of Rule 9 of Order 9 has no application. In view of the above reasons, the tribunal has committed error of law while deciding issue no.2 and in holding that the claimants' second claim petition is barred under Order 9 Rule 9 CPC. Hence, the appeal of the appellant is allowed and the order of dismissal of the claim petition of the claimants is set aside. The matter is remanded to the tribunal for deciding the claim petition of the claimants fresh in accordance with law. Both the parties are directed to appear before the Motor Accident Claims Tribunal on 19.1.2009. The tribunal is requested to decide the claim SBCMA No.1792/2007 Sahab Singh & Anr. Vs. Maya Ram & Ors. 7 petition expeditiously in view of the fact that it is an old accident claim case of the year 1983. (PRAKASH TATIA), J. c.p.goyal/-