JUDGMENT KRISHN KUMAR LAHOTI, J. ( 1 ) THIS appeal is directed against the order dated 3. 8. 2004 in Civil Suit no. 1-A/2003 by which the suit filed by Prakash Nath Chaturvedi, the predecessor of the appellants, was dismissed by the trial Court on the ground that the plaintiff was precluded from filing such suit under Order 9 rule 9, Code of Civil Procedure ( hereinafter referred to as `the Code' ). ( 2 ) THE learned counsel for the appellants submitted that: (a) The cause of action for filing earlier suit was an order passed by the tehsildar in mutation proceedings while the cause of action for filing present suit arose on 17/18. 7. 2001 when the defendants 1,2and3 executed a registered sale deed in favour of defendant no. 4. Because of this execution of the sale deed in favour of respondent no. 4, a fresh cause of action arose to the plaintiff for filing present suit. In these circumstances, the provision of Order 9 rule 9 of the Code were not applicable, the trial Court erred in dismissing the suit filed by the appellants. (b) Reliance was placed to the Supreme Court judgments in Suraj Ratan thirani vs. Azamabad Tea Co. Ltd. AIR 1965 SC 295 (para 30) State of U. P. Vs. Jagdish Sharan Agrawal (2009)1 SCC 689 and submitted that this appeal be allowed, the impugned order be set aside and the case be remanded back to the trial Court to decide it on merits. ( 3 ) SHRI A. K. Jain, the learned counsel appearing for respondent no. 4, opposed the contention and submitted that cause of action is bundle of facts which have to be ascertained from the pleadings of the case. The contention of the appellant that earlier suit was filed because of order passed by the tehsildar in mutation proceedings, and subsequent suit was filed because of the sale deed executed by defendants 1,2 and 3 in favour of defendant no. 4 on 17. 7. 2001, is misconceived. The cause of action in the earlier suit was based on certain facts on the basis of which, the plaintiff sought relief of declaration of title and in the present case also, the plaintiff claimed declaration of the title on same set of facts, though new reliefs in respect of the sale deed dated 17. 7. 2001, possession over the property etc. 7. 2001, possession over the property etc. were sought, but the fact remains that the earlier suit seeking declaration of the title was dismissed under Order 9 rule 8 of the Code and the plaintiff was precluded from filing a subsequent suit on the basis of same cause of action. The trial Court rightly dismissed the suit in view of specific provision under order 9 rule 9 of the Code in which there is no error. He had also placed reliance to the Apex Court judgment in Suraj Ratan Thirani (supra) and submitted that this appeal itself is liable to be dismissed in view of the law laid down by the Apex Court in para 31 of the judgment of Suraj Ratan thirani (supra) ( 4 ) TO appreciate the contentions of the parties, it would be appropriate if the factual position in the present case is seen. (a) The present suit was filed before the trial Court by Prakash Nath Chaturvedi ,who died during the pendency of this appeal. The same plaintiff Prakash Nath Chaturvedi earlier filed a suit before Additional Civil Judge Class-I,katni which was registered as Civil Suit no. 65-A/1991-92 claiming relief of declaration of title against Rajendra Kumar, Virendra kumar, Surendra Kumar and Smt. Laxmi Devi Wd/o Kedar Prasad Agrawal. In the earlier plaint, the plaintiff specifically pleaded in paras 2,3 and 4 that he was the owner of land s. No. 1126/1 area 1. 586 hectares of village Mudwara. In para 5 of the plaint, it was pleaded by the plaintiff that though he was the owner of the property, but the defendants got their names recorded in the revenue record. The plaintiff moved an application before the tehsildar for recording his name in the revenue record, but the Tehsildar rejected the application on the ground that the plaintiff may get his title declared from the Civil Court. Thereafter the suit was filed for such relief. In para 10 , the plaintiff prayed that he be declared bhumiswami of the land of which particulars were furnished in para 4 of the plaint. Thereafter the suit was filed for such relief. In para 10 , the plaintiff prayed that he be declared bhumiswami of the land of which particulars were furnished in para 4 of the plaint. (b) In para 14 of the present suit, the plaintiff has specifically pleaded that the plaintiff in the year 1992 filed a civil suit before the Civil Judge registered as Civil Suit No. 65-A/1991-92 against the defendant seeking declaration in respect of title of bhumiswami in the disputed land but the aforesaid suit was dismissed because of the sickness of the plaintiff in the year 1999. In the said suit, the defendants appeared and filed written statement. The plaintiff claimed title on the basis of the same set of fact, which were pleaded in earlier suit. The plaintiff has also claimed Maurashi Krishik rights under Section 190 of the M. P. Land revenue Code and pleaded that the possession of the plaintiff over the disputed land was in the knowledge of the defendant since 1906-07, but had not claimed adverse possession against the defendant. The plaintiff has also pleaded in para 30 that on 6. 6. 2001, the plaintiff moved an application before the Tehsildar that he is the bhumiswami of the land and his name be recorded in the revenue record. The notice was issued to defendants 1 to 3 in which the defendants filed their reply. In para 31, the plaintiff pleaded that during the pendency of the proceedings, a sale deed was executed in favour of defendant no. 4 by defendants 1 to 3 which was violative of Section 52 of the Transfer of Property Act. In para 33 the plaintiff pleaded that a civil suit was filed by defendant no. 4 against the plaintiff in the court of Civil judge registered as Civil Suit No. 144-A/2000, and on 24. 6. 2002, the plaintiff became aware in respect of execution of the sale deed by defendants 1,2 and 3 in favour of defendant no. 4. On these facts, the plaintiff sought declaration of the title in respect of disputed land and also prayed that the sale deed executed by defendants 1,2 and 3 in favour of defendant no. 4 be declared as null and void. The plaintiff has also prayed perpetual injunction against the defendants. On notice, the respondent no. 4. On these facts, the plaintiff sought declaration of the title in respect of disputed land and also prayed that the sale deed executed by defendants 1,2 and 3 in favour of defendant no. 4 be declared as null and void. The plaintiff has also prayed perpetual injunction against the defendants. On notice, the respondent no. 4 filed an application before the trial Court under order 7 rule 11 of C. P. C. dated 28. 3. 2003 in which in para 3, defendant no. 4 raised an objection that the earlier suit filed for declaration and perpetual injunction on the same cause action was dismissed in 1999. So a fresh suit on the same cause of action was barred by law. (d) The appellant filed reply of the application in which he admitted partly averments made in para 3 of the application. (e) The parties also filed documentary evidence before the trial Court by filing pleadings of the earlier suit. (f) The trial in this case on the basis of admission that the earlier suit was dismissed after appearance of the defendant and filing of written statement, in default of appearance of the plaintiff, found that the earlier suit was dismissed under Order 9 rule 8 of the Code and the subsequent suit was barred under Order 9 rule 9 of the Code, rejected the plaint under order 7 rule 11 (d) of the Code. ( 5 ) NOW, in the light of the aforesaid facts, the legal position in the case may be looked into. The earlier suit was dismissed by the trial Court under order 9 rule 8 of the Code. Order 9 Rule 8 and Order 9 rule 9 of the Code may be referred, which read thus:- "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 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. 9. 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 brining 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. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party. " Order 9 rule 9 specifically provides that 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 aside 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. But in the present case, the later provision was not invoked by the plaintiff and the dismissal under Order 9 rule 8 attained finality. The plaintiff never approached to the trial Court under Order 9 rule 9 C. P. C. . In this background, the subsequent suit based on same cause of action was barred and the plaintiff was precluded from filing a fresh suit in respect of same cause of action. The Apex Court in Suraj Ratan (supra)considering the legal position held thus: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 PC 78) is sound and expresses correctly the proper interpretation of the provision. 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 PC 78) 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 causes of action in the two suits in substance - not technically - identical?" 31. The learned Judge thereafter referred to an earlier decision of the Privy Council in Soorjomonee Dayee v. Suddanund, 12 Beng LR 304 at p. 315 and extracted the following passage as laying down the approach to the question : "their Lordships are of opinion that the term 'cause of action' is to be construed with reference rather to the substance than to the form of action. . . . . " applying this test we consider that the essential bundle of facts on which the plaintiffs based their title and their right to relief were identical in the two suits. The property sought to be recovered in the two suits was the same. The title of the persons from whom the plaintiffs claimed title by purchase, was based on the same fact viz. , the position of md. Ismail quoad his co-heirs and the, beneficial interests of the latter not being affected or involved in the mortgages, the mortgage decree and the sale in execution thereof. No doubt, the plaintiff set up his purchases as the source of his title to sue, but if as we have held the bar under O. IX, R. 9, applies, equally to the plaintiff in the first suit and those claiming under him, the allegations regarding the transmission of title to the plaintiffs in the present suit ceases to be material. The only new allegation was about the plaintiffs getting into possession by virtue of purchase and their dispossession. Their addition, however, does not wipe out the identity otherwise of the cause of action. The only new allegation was about the plaintiffs getting into possession by virtue of purchase and their dispossession. Their addition, however, does not wipe out the identity otherwise of the cause of action. It would, of course, have made a difference if, without reference to the entecedent want of full title in Ismail which was common to the case set up in two plaints in Suit 58 of 1931 and Suit 18 of 1943, the plaintiffs could on the strength of the possession and dispossession or the possessory title that they alleged have obtained any relief. It is, however, admitted that without alleging and proving want of full title in Md. Ismail the plaintiffs could be granted no relief in their present suit. The question is whether the further allegations about possession in October, 1934 have really destroyed the basic and substantial identity of the causes of action in the two suits. This can be answered only in the negative. The learned Judges of the High Court therefore correctly held that the suit was substantially barred by O. IX, r. 9. " ( 6 ) CONSIDERING the legal position settled in para 31 of the judgment , the cause of action to be construed with reference to the substance and the principle has to be applied in determining the cause of action and if a subsequent suit is based on same cause of action, the Apex Court held that under Order 9 rule 9, the plaintiff was precluded to file a second suit. In this case, the cause of action for filing of the suit was based on same facts on the basis of which the plaintiff had claimed declaration of his title and the earlier suit was dismissed under Order 9 rule 8 of the Code. So the plaintiff was precluded from filing a fresh suit in view of the specific provision contained in Order 9 rule 9 of the Code. ( 7 ) SO far as judgment of the Apex Court in Jagdish Sharan Agrawal (supra) is concerned, the Apex Court found that the earlier suit was not dismissed under Order 9 rule 8 of the Code and the provisions of Order 9 rule 9 of the Code were not applicable. ( 7 ) SO far as judgment of the Apex Court in Jagdish Sharan Agrawal (supra) is concerned, the Apex Court found that the earlier suit was not dismissed under Order 9 rule 8 of the Code and the provisions of Order 9 rule 9 of the Code were not applicable. Earlier suit was filed by the Municipal board Nagar Palika, Lalitpur and subsequent suit was filed by the State though on same set of facts the earlier suit was dismissed for non prosecution, but was not dismissed under Order 9 rule 8 of the Code. The apex Court held that the State was entitled to file a suit and dismissal of the subsequent suit by the trial Court was not justified and remanded the matter to the trial Court for deciding the suit on merits in peculiar facts and circumstances of the case. The judgment of the Supreme Court in the case of Jagdish Sharan Agrawal (supra) is not applicable in the present case. The present suit was based on same cause of action on which earlier suit was dismissed. ( 8 ) IN view of the aforesaid, the trial Court rightly held that the plaintiff was precluded from filing subsequent suit on the basis of same cause of action, in which we do not find any error warranting our interference under section 96 of the Code. This appeal is found without merit and is dismissed with no order as to cost. A decree be drawn accordingly. Counsel's fee as per schedule. .