Order IX Rule 9 CPC-Decree Against Plaintiff By Default Bars Fresh Suit On Same Cause Of Action By Successor In Title: SC [Read Order]

The Supreme Court has observed that the decree against plaintiffs by default bars fresh suit on the same cause of action by their successor in title.

The bench comprising Justice Arun Mishra and Justice MR Shah set aside a High Court order on the ground that in the previous suit filed by vendors of the plaintiff; a similar relief was prayed. The said suit 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 this case [Mayandi vs.Pandarachamy], the suit was rejected only on the ground that the earlier suits filed by the vendors of the plaintiff were on the same cause of action and the property in both the earlier suits and the property in the present suit are one and the same.

The High Court, in a second appeal, had decreed the suit on the ground that it was on a different cause of action. The High Court had noticed that the previous suit was filed by the vendors of the plaintiff against the first defendant for declaration of their right and title and the said suits were dismissed for non prosecution. It was further held that the plaintiff, who was only a mortgagee, had purchased the property in discharge of the debt and thus the cause of action to maintain the present suit, so far as the plaintiff is concerned, is the mortgage deed.

These interesting questions of law were framed in the second appeal:

• When the plaintiff alone is precluded from bringing a fresh suit in respect of the same cause of action where his previous suit is dismissed for default under Order 9 Rule 9 of Civil Procedure Code, whether the subsequent suit filed by the successor-in-title of the plaintiff is maintainable?
• When the terminology used in Section 11 of the Civil Procedure Code bars a fresh suit between the same parties or between parties under whom they claim, litigating under the same title and when no such terminology is used in Order IX Rule 9 of the Civil Procedure Code, whether the first appellate Court is right in holding that the subsequent suit filed by the successor-in-title is not maintainable in view of the bar under Order 9 Rule 9?

In appeal, the bench referred to these provisions of Order IX Rule 9 of the CPC:

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.

Setting aside the judgment of the High Court, the bench, in a briefly worded order, said that it erred in law in holding that the subsequent suit was based on different cause of action, as such it was maintainable.It said:

"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."

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