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Madhya Pradesh High Court · body

2016 DIGILAW 1082 (MP)

Bharat Singh v. Ganeshram

2016-11-28

D.K.PALIWAL

body2016
JUDGMENT 1. This civil revision has been filed under section 115 of the Code of Civil Procedure, 1908 being aggrieved by the order passed by IVth Civil Judge, Class II, Vidisha in Civil Suit No.107-A/2010, whereby the application preferred by the petitioner under section 11 read with section 151 of CPC has been dismissed. 2. Brief facts of the case are that the plaintiff-respondent No.1 filed a suit for permanent injunction pleading that he was Bhoomiswami of the land bearing survey No.233, area 0.627 hectre situated at village Dhaturiya Chaubisa, Tahsil Gulabganj, Disitrict Vidisha. The petitioner/defendant No.1 is intervening the possession and title of the plaintiff, therefore, sought relief of permanent injunction.The petitioner-defendant No.1 in his written statement denied the plaint allegations, especially title and possession of the plaintiff claiming that the suit be dismissed. It is also stated that previously also Civil Suit No.12-A/2009 has been filed by the plaintiff against defendant No.1 on the same set of facts which has been dismissed for want of evidence, therefore, the suit is not maintainable and is barred by section 11 of the CPC. 3. The petitioner-defendant No.1 has also filed an application under section 11 CPC read with section 151 pleading that the plaintiff has filed a civil suit with regard to agricultural land bearing survey No.233, area 0.627 hectare for grant of permanent injunction which was dismissed vide order dated 14.7.2010, therefore, without permission of the Court the suit is not maintainable and barred by res judicata. 4. In reply, respondent-plaintiff submitted that in the previous suit defendant has not interfered in the possession of the plaintiff and the civil suit was not disposed of on merits but it was dismissed in absence. It was also stated that the cause of action was different, hence prayed for rejection of the application. 5. The learned trial Court dismissed the application by the impugned order, being aggrieved this revision has been preferred. It is submitted that the impugned order is illegal and without jurisdiction and deserves to be set aside.The Court below failed to exercise jurisdiction vested in it under the law and erred in passing the impugned order without considering the relevant provisions of Order 9 rule 8 and order 7 rule 11(d) of CPC. The wrong mention of provision does not come in the way to impart justice. Hence, it is prayed that the impugned order be set aside. The wrong mention of provision does not come in the way to impart justice. Hence, it is prayed that the impugned order be set aside. 6. None appeared on behalf of the respondent, though notice was served. 7. I have considered the submissions made by learned counsel for the petitioner and perused the record. 8. Copy of the plaint in Civil Suit No.12-A/2009 reveals that it was filed by the respondent No.1-plaintiff for permanent injunction pleading that he is Bhoomiswami of servery No. 233, area 0.627 hectare which has been purchased from Pyarelal vide registered sale deed.The defendant No.1 has no title or possession but he is threatening to dispossess, hence prayed for grant of permanent injunction. The pleadings of Civil Suit No.107-A/2010 reveals that this plaint has also been filed for grant of permanent injunction and the similar pleading has been averred except the date of threatening of possession. A copy of the order sheet of Civil Suit No.12-A/2009 dated 14.7.2010 reveals that the plaintiff and his counsel were absent. The matter was posted further at 3:30 p.m. and again call was made but again the plaintiff and his counsel were absent. Therefore, the suit was dismissed on account of absence of plaintiff and his counsel and also for not adducing any evidence. Thus, from the aforesaid order it appears that the suit has been dismissed under order 9 rule 8 of the Code of Civil Procedure. Order 9 rule 8 reads as under : “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.” Order 9 rule 9 reads as under : “9. Degree against plaintiff by default bars fresh suit.-- (1) Where a suit is wholly or partly dismissed under rule, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. Degree against plaintiff by default bars fresh suit.-- (1) Where a suit is wholly or partly dismissed under rule, 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. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.” 9. From the aforesaid provision, it is crystal clear 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. 10. It is pertinent to mention that respondent-plaintiff has not preferred any application under Order 9 rule 9 CPC before the trial Court. In such circumstances, the plaintiff cannot bring a fresh suit in respect of same cause of action for filing of the suit based on same facts on the basis of which the plaintiff had claimed permanent injunction and the earlier suit was dismissed not only for absence of plaintiff but also that no evidence has been adduced. The plaintiff was precluded from filing a fresh suit in the light of provisions of Order 9 rule 9 of the CPC. 11. The learned trial Court erred in holding that the earlier suit was decided on the absence of the plaintiff and the right of the parties were not finally decided, hence res judicata is not applicable. The plaintiff was precluded from filing a fresh suit in the light of provisions of Order 9 rule 9 of the CPC. 11. The learned trial Court erred in holding that the earlier suit was decided on the absence of the plaintiff and the right of the parties were not finally decided, hence res judicata is not applicable. As noticed above, earlier suit has been dismissed in the light of the provisions of Order 9 rule 8 of CPC, hence the remedy available to respondent/plaintiff was to approach the trial Court under Order 9 rule 9 CPC and he was precluded to file fresh suit. 12. In the light of aforesaid discussion, this civil revision deserves to be allowed, hence it is allowed. The impugned order is set aside.