Fresh Suit Maintainable After Restoration Application Dismissal: Supreme Court Upholds High Court Ruling.


22 April 2025 Civil Suits >> Civil & Consumer Law  

The Supreme Court of India recently in Amruddin Ansari (Dead)Through Lrs & Others v/s Afajal Ali & Others., dismissed a petition challenging a Chhattisgarh High Court judgment, definitively ruling that a fresh suit is maintainable even after an application for restoration of a previously dismissed suit under Order IX Rule 4 of the Civil Procedure Code (CPC) has been rejected. This decision reinforces the distinction between different dismissal scenarios under Order IX of the CPC.

The case originated from a long-standing land dispute in Ramanujganj, Chhattisgarh. The father of the original plaintiffs initially filed a civil suit for declaration, cancellation of a sale deed, and a permanent injunction. This suit was dismissed under Order IX Rule 2 of the CPC, and his subsequent application for restoration under Order IX Rule 4 was also dismissed, attaining finality.

 
 

Later, the original plaintiffs (the legal heirs) instituted a fresh suit in 2001, seeking the same reliefs. The Trial Court found in favor of the plaintiffs on all issues, including ownership rights and the invalidity of the sale deed. However, the First Appellate Court reversed this decision, setting aside the Trial Court's judgment and decree.

The plaintiffs then appealed to the Chhattisgarh High Court in a Second Appeal. The High Court formulated three substantial questions of law, including whether the fresh suit was barred by res judicata and the evidentiary value of a document titled "Vazib Dava" (Exhibit P-1). The High Court allowed the Second Appeal, answering all three questions in favor of the plaintiffs, thereby restoring the Trial Court's judgment and decree. The original defendants subsequently brought the matter to the Supreme Court.

The Supreme Court, after hearing arguments from both sides, focused on two primary questions:

Whether a fresh suit is maintainable after the dismissal of a petition for restoration of a suit under Order IX Rule 4 of the CPC.

Whether a fresh suit is barred by res judicata after dismissal of the original suit for default.

Maintainability of a Fresh Suit:

The Court meticulously examined Order IX Rule 4 of the CPC, which states that 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". The Supreme Court expressed "respectful agreement" with a Privy Council decision in Bhudeo v. Musammat Baikunthi which held that these two remedies are not mutually exclusive. The Privy Council emphasized that if a plaintiff, in good faith, seeks restoration and fails, they should not be penalized by being barred from filing a fresh suit.

The Court further highlighted the stark difference between Order IX Rule 4 and Order IX Rule 9 of the CPC. Order IX Rule 9 explicitly states that where a suit is dismissed under Rule 8 (when the defendant appears but the plaintiff does not), "the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action". The absence of such a preclusive clause in Order IX Rule 4, the Court noted, signifies that a fresh suit is indeed permissible after a dismissal under Rule 2 or 3, even if a restoration application under Rule 4 is rejected. This distinction is crucial: Rule 4 offers concurrent remedies, while Rule 9 provides only one.

Applicability of Res Judicata:

On the question of res judicata, the Supreme Court stressed that for the doctrine to apply, there must be an adjudication of an issue by a court of competent jurisdiction. The Court referred to Section 2(2) of the CPC, which defines "decree" as a formal expression of an adjudication that conclusively determines the rights of the parties. Significantly, Section 2(2) explicitly states that a "decree" "shall not include... any order of dismissal for default".

The Court reasoned that a dismissal for default, particularly under Rule 2 or 3 of Order IX, is not a formal expression of an adjudication on any right or defense. Furthermore, such an order of dismissal is not an appealable order under Order XLIII of the CPC, unlike orders passed under Order IX Rule 9 or Rule 13. Therefore, the Court concluded that an order of dismissal for default under Rule 2 or 3 of Order IX CPC "does not fulfill the requirement of the term 'judgment' or 'decree', inasmuch as there is no adjudication". Consequently, such a dismissal cannot operate as res judicata to bar a fresh suit.

Regarding the document "Wajib Dava" (Exhibit P-1), the Supreme Court found no reason to interfere with the High Court's reasoning.
In conclusion, the Supreme Court found no grounds to interfere with the High Court's judgment, thereby dismissing the defendants' petition.


Code of Civil Procedure, 1908