IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.) CR/ 12- /2008 <a Applicant Defendent No.2 Non Applicant Plaintiff Nan Applicant DefendentNo.l ^/ s? •s^ " Smt. Tahira Begam Aged38 year W/o. Sekh Aayub R/o. Badai Chowk, Jarahabhata, Bilaspur, Tah. & Dist. Bilaspur. Versus ^(1) Devi Singh Aged 63 years S/o. Firtu Singh R/o. Chantapara, Bilaspur Tah. & Dist. Bilaspur (C.G.) : (2) Devmala Aged 38 years S/o. Anjani Singh Thakur R/o. Useribeda, P.0. Lohandiguda, Tah. Jagadalpur, Dist Bastar (C.G.) CIVIL REVISION U/SEC. 115 OF C.P.C. ^" .__SsL_^ ^- HIGH COURT OF CHHATTISGARH AT BILASPUR CIVIL REVISION N0. 12 OF 2008 APPLICANT Smt. Tahira Begum Versus 1 NON-APPLICANTS : Devi Singh and another ORDER Postfor2^01-2010 Sd/- N. K. Agarwal Judge HIGH COURT OF CHHATTISGARH AT BILASPUR CIVIL REVISION N0.12 OF 2008 APPLICANT NON-APPLICANTS Smt. Tahira Begum Versus Devi Singh and another REVISION UNDER SECTION 115 OF C.P.C. (Single Bench: Hon'ble Mr. N.K. Aaarwal. J.) Present : Shri Shrikumar Agrawal Senior Advocate with Shri Anand Gupta, counsel for the appellant. Shri Somnath Verma, counsel for non-applicant No.1. Shri Subhash Yadav, counsel for non-applicant No.2. O R D ER (Passed on -^-^- day ofJanuary, 2010) This revision arises out of the order dated 14-12-2007 passed by Vlllth Additional District Judge, (F.T.C.), Bilaspur in Civil Suit No.l-A/2006. 2. Undisputedly, the plaintiff/non-applicant No.1 herein filed a suit against the applicant and non-applicant No.2 seeking relief of declaration of title, possession, permanent injunction and damages valued at Rs.10,000/-. The suit was registered as Civil Suit N0.3-A/2003. 3. The said suit was dismissed under Order IX Rule 8 of C.P.C. on 04-10-2005. The plaintiff did not file any application under Order IX Rule 9 of C.P.C. for its restoration. Instead filed a fresh suit on the same cause of action, against the same parties for the same relief by valuing the suit at Rs.4,50,900/- before the Vlllth Addl. District Judge, Bilaspur (C.G.) which was registered as Civil Suit No.l-A/2006. Applicant raised a plea of non- maintainability of the suit in her written statement. The learned trial Court framed a preliminary issue in this regard, vide impugned order decided the same in plaintiffs favour holding suit as maintainable since the valuation in both the suits is different. 4. Shri Shrikumar Agrawal, learned Senior Advocate would submit that a bare reading of both the plaints (Annexures P-1 and P-3) would reveal that both the suits are identical; filed on the same cause of action; between the same parties; for the same reliefs, the only change is valuation of relief of declaration, by mere valuing it differently, the cause of action would not change. Reliance has been placed on the judgment of Patna High Court in case of Ramji Jankiji and another v. Mauni Baba Kale Kambalwala Jai Siyaram Dasji & others; reported in AIR 1978 Patna 48. 5. Per contra, Shri Somnath Verma, learned counsel for the plaintiff/respondent No.1 would submit that since earlier suit was not fixed on 04-10-2005 for effective hearing and therefore, it was not competent for the Court to dismiss the suit under Order IX Rule 8 of C.P.C., and it cannot be said that the instant suit is barred under Order IX Rule 9 of C.P.C, Reliance has been placed upon the judgment of High Court of Madhya Pradesh in case of Metharam Basarmal v. Khataumal Jeoomal; reported in 1962 JLJ 599. 6. I have heard learned counsel for the parties. ^ •^^4 7. Facts are not in much dispute. On 04-10-2005, the suit was dismissed by the trial Court under Order IX Rule 8 of C.P.C. Application for its restoration was not preferred. Instead fresh suit was filed, substantially on the same cause of action by merely changing its valuation. 8. The provisions contained in Order IX Rules 3,4,8 and 9 are reproducedas under: "3. Where neither party appears, suit to be dismissed.- Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed. 4. Plaintiff may bring fresh suit or Court may restore suit to file,- Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for [such failure as is referred to in rule 2], or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit. 8. Procedure where defendant only appears,- Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the dairn, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has 4 been admitted, shall dismiss the suit so far as it relates to the remainder. 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." 9. Order IX C.P.C. deals with appearance of the parties and consequence of non-appearance. If neither party appears when the suit is called on for hearing and the Court dismisses the suit then plaintiff is riot precluded from bringing a fresh suit. Whereas, if the defendant appears and plaintiff does not appear when the suit is called on:for hearing and the Court dismisses the suit, then the only option left with the plaintiff to apply for an order to set the dismissal aside but he shall be precluded from bringing a fresh suit in respect of the same cause of action. 10. While considering the meaning of words in respect of the "same cause of action" occurring in Rule 9 of Order IX of C.P.C. the Supreme Court in case of Suraj Rattan Thirani and others vs. Azamabad Tea Co. Ltd., and others, reported in AIR 1965 SC 295 has observed in para 30 of its judgment as under: "30. We consider that the test adopted by the Judicial Committee for determining the identity of the causes of action in two suits in Mohammed Khalil Khan v. Mahbub Ali Mian, 75 Ind App. 121: (AIR 1949 PC78) is sound and expresses correctly the proper interpretation of the provision. In that case Sir Madhavan Nair, after an exhaustive discussion of the meaning of the expression "same cause of action" which occurs in a similar context in para (1) of O. II R. 2 of the Civil Procedure Code observed: "In considering whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, the test to be applied is are the cause of action in the two suits in substance - not technically - identical?" 11. The Division Bench of High Court of Gujarat in case of Gujarat Electricity Board, Baroda and others v. Saurashtra Chemicals, PorJbancfar; reported in AIR 2004 Gujarat 83 has held in para 4 of its judgment that if a civil suit is dismissed under Order IX Rule 9 of C.P.C., Order IX Rule 9 C.P.C. precludes a second suit of same cause of action. 12. In view of the aforesaid interpretation of the language used in Order IX Rule 9 of C.P.C. in the facts and circumstances of the case, it cannot be disputed that the subsequent suit has been filed on the "same cause of action'. It is also not in dispute in view of the aforesaid dictum of the Supreme Court and dictum of the Gujarat High Court to which 1 am in respectful agreement, Order IX Rule 9 of C.P.C. precludes a ^ second civil suit in respectof "the same cause of action" where the first suit is dismissed for default of appearance of the plaintiff. It is one thing to say that the order of dismissal is not proper and, therefore, the same deserves to be set aside on an application filed by the plaintiff under Order IX Rule 9 of C.P.C. but it is not correct to say that since the trial Court has committed an error in dismissing the suit'under Order IX rule 8 C.P.C., therefore, though the dismissal was under Order IX Rule 8 C.P.C., the plaintiff is entitled to bring a fresh suit. On being pointedly asked Shri Verma failed to point out any relevant enabling provision under which according to him the suit can be said to be dismissed in the instant case, therefore, the contention that dismissal of suit on 04-10-2005 by trial Court was not dismissal under Order IX Rule 8 of C.P.C. is sans substance. 13. The .case cited by Shri Verma is also of no help to him. In case of Metharam Basarmal v. Khataumal Jeoomal (supra), the learned Single Bench of Madhya Pradesh High considering the scope and ambit of the provision contained in Section 40 of the Displaced Persons (Debts Adjustment) Act, 1951 which provides appeal against any final decree or final order of the Tribunal under the said Act, came to a conclusion that the final order includes in its ambit, the order of dismissal in defarlt which has the effect of terminating the proceeding for ever, and, therefore, such orders are also appealable under the said provisions. The scope and ambit of Order IX Rule 9 which precludes a second suit in respect of the same causeof action where the first suit is ,:^^^ A. "'^ .^^^^ '^, '^^>-v^f^,:'. ^^^^^s^ J :::. ^^' dismissed for default of appearance of the plaintiff, was not under consideration of the Court in that case and the ratio of the aforesaid judgment is at all not applicable in the facts and circumstances of the present case. 14. In view of above, l have no hesitation to hold that the earlier suit was dismissed by the trial Court under Rule IX Rule 8 of C.P.C and in view of Order IX Rule 9 of C.P.C. the instant suit which is a second suit fited upon same cause of action is not maintainable. The order of trial Court is patently illegal and is hereby set aside, the suit preferred by the plaintiff is dismissed as not maintainable in view of the provision contained in Order IX Rule 9 of C.P.C. The revision is allowed. No order as to costs. Sd/- N. K.Agarwal Judge