JUDGMENT U.C. Maheshwari, J. 1. An unsuccessful plaintiff being aggrieved has knocked the door of this court under section 96 of Civil Procedure Code against the Judgment and decree dated 30-12-2004 passed by the learned third Additional District Judge, Jabalpur in original Civil Suit No. 8-A/2003, whereby his suit for declaration and perpetual injunction has been dismissed. 2. According to appellant/plaintiff he filed a suit for declaration and perpetual injunction regarding land/plot situated at Gohalpur, Jabalpur bearing survey No. 252/2, area 0.147 hectare, which is equal to 4010 sq.ft. this being a diverted land and purchased by the appellant vide sale deed dated 24-6-1993 from one Mohd. Rasid s/o Peer Mohd., resident of Jabalpur through his attorney S. K. Shukla and got the same mutated in his name and after getting requisite sanction from Municipal Corporation, Jabalpur by order dated 22-2-1995 a residential house No. 312/7B was constructed over this land and is residing with his family in the same house. 3. On acquisition of title by appellant the said plot was demarcated by the Revenue department on 20-7-1995 and land in dispute was given to the appellant out of the entire area of survey No. 252/2. He further pleaded that respondents which is an autonomous body constituted under the provision of Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, had given a show cause notice No. Vi. Pr. Taksa/2000/679 dated 28-2-2000 by alleging that the abovesaid land was acquired by it for a scheme and on earlier stage appellant was also directed to stop his illegal construction but despite the same it was completed. The plaintiff was directed to appear within three days with all his documents in their office and further directed that if his version would not be found satisfactory then appropriate proceeding for removal of said construction would be taking up at the cost of the plaintiff/appellant. A reply in the shape of notice under section 80, Civil Procedure Code dated 6-3-2000 was sent by the appellant but the same was not considered and without giving any opportunity of hearing respondents issued another notice dated 7-3-2000 and as the respondent was very much anxious to dismantle and remove the construction raised by the appellant. Resultantly the impugned suit for declaration of title, possession and for perpetual injunction was filed. 4. Resultantly the impugned suit for declaration of title, possession and for perpetual injunction was filed. 4. In the written statement filed on behalf of respondents it was pleaded that said land was acquired by them for implementation of proposed scheme planned by the predecessor institution namely Town Improvement Trust, Jabalpur and appellant had no authority to challenge the said acquisition proceedings after 22 years by way of filing this civil suit. It was further pleaded that the matter is relating to the land acquisition law and, therefore, Civil Court had no jurisdiction to decide the same. It was further set forth that claim has neither been properly valued nor proper court fees has been paid as such it is not maintainable. 5. An objection was taken at the earlier stage that Civil Suit No. 175-A/95, was filed by the present appellant and the same was dismissed by order dated 16-8-1999 by the IXth Additional District Judge, Jabalpur and in view of the aforesaid the plaintiff had no right to file the second civil suit regarding the same dispute as it is hit by the doctrine of Res-judicata. 6. On framing the issues both parties went to lead their evidence. The appellant examined as many as three witnesses while respondent examined only one witness Shri G. N. Singh D. W. 1, Officer-in-charge of the case and on consideration of evidence all the issues except issue Nos. 7 and 8 were decided in favour of the appellant/plaintiff, but in view of earlier Suit No. 175-A/1995, which was dismissed in default applying the principle of Order 9, Rule 9 of Civil Procedure Code, the present suit was held as not maintainable and accordingly it faced dismissal the same. Hence, this appeal. 7. The impugned judgment and decree is challenged on various grounds out of which one of the ground relates to Order 9, Rule 9 of Civil Procedure Code which was wrongly invoked and suit was held as not maintainable. According to appellant earlier suit was filed on different cause of action and present one was filed on a different cause of action which arose on 28-2-2000 and 7-3-2000. 8. During the pendency of appeal, appellant has filed an application dated 9-2-2005 with a prayer that in view of the order dated 21-9-1993, Abdul Samin v. J.DA. According to appellant earlier suit was filed on different cause of action and present one was filed on a different cause of action which arose on 28-2-2000 and 7-3-2000. 8. During the pendency of appeal, appellant has filed an application dated 9-2-2005 with a prayer that in view of the order dated 21-9-1993, Abdul Samin v. J.DA. passed in W.P. No. 350/90, 353/90, 364/90, 365/90 and 366/90, he does not want to press this appeal for declaration of title as prayed for in the suit but wants to proceed for the relief of perpetual injunction only. 9. The appellant is sole judge of his own case and while he wants to withdraw his prayer for declaration of title from original suit then he cannot be insisted to contest the matter on this count also. Therefore, said application dated 9-2-2005 is hereby allowed and the prayer of declaration of title from the relief clause stands deleted. 10. Having heard learned counsel of the respective parties, we are of the considered view that this appeal deserves to be allowed regarding relief of perpetual injunction. 11. Counsel for the appellant submitted that after withdrawing the prayer for declaration of title the suit remains only for restraining the respondents for interference in the appellant's possession regarding his property by issuing a perpetual injunction. 12. Before entering into merit of this matter, we have carefully perused the order passed in W.P. No. 353/93, Abdul Samin v. J.D.A., in which the land of present survey number was involved and on considering the entire land acquisition and other proceedings it was held as under: 13. According to our considered view, this appeal does not require any interference regarding findings of issue No. 1 to 6 by which the trial Court has held that the appellant being a Bhumi-swami filed a suit within period of limitation, with proper valuation and pasting of court fees and Civil Court has jurisdiction to entertain and also that there is no bar to file present suit because principle of res-judicata is not applicable to the present matter. It has also decided that the present appellant has constructed his house after obtaining requisite sanction from Municipal Corporation, Jabalpur and it is undisputed that said findings have not been challenged by the respondents either by filing cross objection or by an independent appeal. It has also decided that the present appellant has constructed his house after obtaining requisite sanction from Municipal Corporation, Jabalpur and it is undisputed that said findings have not been challenged by the respondents either by filing cross objection or by an independent appeal. The findings recorded by the learned trial Judge are sound based on material on record and founded on well informed and cogent reason. 14. The appellant's suit was dismissed only on the ground that suit was not maintainable under the provisions of Order 9, Rule 8 and 9 of Civil Procedure Code. Therefore, we have to examine this aspect of the case; Order 9, Rule 8 and Order 9, Rule 9 are read as under : Order 9, Rule 8 : Procedure where defendant only appears : "Where the defendant appears and 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 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 remainder. Order 9, Rule 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 nonappearance 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. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party. 15. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party. 15. According to aforesaid provisions when defendant appears and plaintiff does not appear at the time of hearing before the court, then suit deserves to be dismissed subject to admitted claim of the defendant and if suit is dismissed under these provisions then plaintiff shall be precluded for bringing a fresh suit in respect of same cause of action but he may apply for setting aside above dismissal and if court satisfied with the explanation of non-appearance of plaintiff on the date of dismissal of suit court it shall make an order for setting aside the dismissal subject to terms and cost as enumerated under Rule 9 as abovesaid. 16. So it is apparent that if the subsequent suit is presented on a different cause of action in other words, which was not cause of action of the earlier suit then subsequent suit is not barred by virtue of aforesaid provisions. 17. In view of this when we examine the case at hand then it is specifically pleaded in para 8 of the plaint that cause of action of the present suit arose only on 11-4-1995 and subsequently on 28-2-2000, 7-3-2000. This was not only pleaded but in support of this notices issued by respondents on 28-2-2000 and 7-3-2000 (Ex. P. 6 and P. 7) have also been produced and proved. Therefore it is undisputed fact that cause of action of present suit is a different one than the cause of action mentioned in the earlier suit i.e. C.O.S. No. 175-A/95, which was dismissed in default (Not on merits) on 16-8-1999 by 1st Additional District Judge, Jabalpur and when subsequent suit is based on different cause of action then it cannot be said the suit is barred under Order 9 Rule 9 of Civil Procedure Code. 18. Beside this provision we have examined this matter from other angles it is settled law that the cause of action regarding suit for the purpose of perpetual injunction is a recurring only and arises on every day while interference is made by the respondent/defendants and in the case at hand on 28-2-2000 and on 7-3-2000 again fresh cause of action arose and the same was available to the appellant for the suit. Although the earlier suit was for declaration of title also but this prayer has already been withdrawn by the appellant. Therefore, this subsequent suit is maintainable for consideration of perpetual injunction. 19. One more aspect is also involved in this case. According to plaintiff/appellant during pendency of earlier suit defendant was not inclined to interfere in his right and possession but at a subsequent stage again some interference was made by defendant/respondent, which gave rise to a new cause of action for filing the fresh suit, hence the same was warranted to be decided on merits and there was no hurdle as we perceive. 20. In view of aforesaid premises, we hold that the suit filed by appellant for perpetual injunction was maintainable and in view of other findings of the trial Court this suit is deserved to be and is hereby decreed for perpetual injunction as prayed by the appellant. Accordingly it is directed that a perpetual injunction be issued in favour of plaintiff/appellant and defendants/respondents are hereby restrained to interfere by demolishing or dispossessing or any other manner interfering in the right of the appellant on the suit property. 21. The appeal is allowed. In the facts and circumstances of the case there shall be no order as to cost. Decree be drawn up accordingly.