1 CRA No.945/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.945 of 2010 Ronnie Lawrence Fernandes ... Applicant versus Smt.Hoshbanoo Aspi Irani & Anr. ... Respondents ... Mr. K.K. Malpathak for the appellant Mr. Rajesh Datar for respondent nos.1 and 2. CORAM : D.G. KARNIK, J DATED : 2nd December 2010 ORAL JUDGMENT: 1. Heard learned counsel for the parties. 2. Respondents are the owners and landlords of the suit premises. Applicant’s father was their employee and he was allowed to occupy the suit premises by reason of his employment with them. After the death of applicant’s father, the applicant was allowed to occupy the premises for some time on compassionate ground but as he failed to vacate the premises the respondents 2 CRA No.945/10 filed a suit for possession. The applicant appeared in the Court and resisted the suit by filing of a written statement. He inter alia contended that respondents had previously filed a suit bearing bearing RCS No.632 of 1988 for possession against the father of the respondent for eviction on the same grounds. That suit was dismissed in default of appearance of the parties. Therefore, the present suit which was a second suit filed on the same cause was not maintainable and was barred by Order 9 Rule 9 of the Code of Civil Procedure. 3. In the suit, the applicant made an application for framing a preliminary issue regarding maintainability of the suit. Accordingly, the Court framed the preliminary issue regarding maintainability of the suit. After hearing the parties, the Court held that the second suit was maintainable and was not barred. Aggrieved by the decision, the applicant has approached this Court in revision. 4. Counsel for the applicant produced for my inspection certified copy of the plaint in RCS No.632 of 1988 as well as the roznama. The certified copy shows that the RCS no.632/88 was dismissed with the following order: “Plaintiff and his advocate though called repeatedly till 5.00 p.m remained absent. No 3 CRA No.945/10 application given. Hence, suit is dismissed in default of plaintiff. No order as to costs”. Sd/- Judge, 11/1/2000 The roznama of the Court shows that on 11 January 2000, both the parties and their advocates were absent and the suit was dismissed by the aforementioned order. 5. Rule 3 as well as Rule 8 of Order 9 of the Code of Civil Procedure empower a Court to dismiss a suit when the plaintiff fails to appear and they read as follows: Rule 3 – Whether 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. Rule 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 4 CRA No.945/10 the claim, 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 been admitted, shall dismiss the suit so far as it relates to the remainder. 6. Rule 3 and 8 operate in different fields. Rule 3 of Order 9 empowers the Court to dismiss a suit when neither party to the suit appears before the Court. Rule 8 of Order 9 empowers the Court to dismiss the suit of the plaintiff when defendant appears and plaintiff does not appear. Rule 9 of Order 9 provides that where a suit is 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. Where the suit is dismissed under Order 9 Rule 8 of the CPC, the plaintiff has a liberty to apply for setting aside the order of dismissal but is precluded from filing a fresh suit. The only remedy available to him when the suit is dismissed under Order 9 Rule 8 is to apply for setting aside the order of dismissal by satisfying the Court that there was a sufficient cause for his absence. 5 CRA No.945/10 7. Rule 4 of Order 9 provides that where a suit is dismissed under Rule 2 or 3 of Order 9 then the plaintiff may subject to 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 his failure referred to in Rule 2 or for his non appearance, the Court shall make an order setting aside the dismissal. Thus, where a suit is dismissed under Rule 3 of Order 9, the plaintiff has two options. He may apply for setting aside the dismissal in which case he is required to show to the Court sufficient cause for his non appearance. In the alternative, without showing any cause for his non appearance, he may file a fresh suit subject to the law of limitation. 8. In the present case, the roznama clearly disclosess on the date fixed for hearing the respondents were absent and therefore, the suit was dismissed by virtue of the power conferred on the Court of Rule 3 of Order 9 of the Code of Civil Procedure. Consequently, the respondents were entitled to file a fresh suit and the second suit on the same cause was not barred. 9. Learned counsel for the appellant submitted that the order does not mention that whether the suit was dismissed under Rule 3 or Rule 8 of the Code of Civil Procedure. Non mentioning of the source of power for dismissal of the suit, in the facts and circumstances of the case, is of no consequence. The roznama clearly discloses that both the plaintiffs as well as defendant were 6 CRA No.945/10 absent when the previous suit was dismissed. The suit therefore could be dismissed only under Rule 3 of Order 9 and not under Rule 8 of Order 9 of the Code of Civil Procedure. The suit was dismissed under Rule 3 and consequently, the fresh suit, subject to law of limitation, could be filed by the respondents. 10. In view of this, it is not necessary to consider the further submissions of the learned counsel for the respondents that while previous suit was filed against the father of the applicant and the cause of action of the suit against the father was different than the cause of action of the suit against the applicant. For these reasons, revision application is rejected. (D.G.KARNIK, J)