Allahabad High Court
United India Insurance Company Ltd. ... vs Pyarelal And Ors. on 22 May, 2025
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:30347 Court No. - 5 Case :- FIRST APPEAL FROM ORDER No. - 549 of 2012 Appellant :- United India Insurance Company Ltd. Thru Branch Manager Respondent :- Pyarelal And Ors. Counsel for Appellant :- Aanand Mohan,Anil Kr. Srivastava Counsel for Respondent :- L.P.Shukla Ii Hon'ble Abdul Moin,J.
1. Heard.
2. Nobody responds on behalf of the respondents. As the matter pertains to the year 2012 and considering that vide the order dated 09.05.2025 it was directed that the matter may not be adjourned on the next date, as such the Court proceeds to hear and decide the case.
3. Instant appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed against the judgment and order dated 14.03.2012 and award dated 21.03.2012 passed by the learned Motor Accident Claims Tribunal/ Additional District Judge, Court No.5, Sitapur in Motor Accident Claim Case No.104 of 2009 (Pyarelal & Anr vs Chandra Kishore Gupta & Ors) whereby the learned Tribunal has awarded a sum of Rs.1,70,000/- along with 6% interest against the Insurance Company.
4. The only ground as urged by the learned counsel for the appellant-Insurance Company is that the claimants had earlier filed two claim applications one after the other namely Claim Applications No.334 of 2002 and 238 of 2003, which were dismissed in default and consequently 3rd claim application filed by the claimants in which the impugned award has been passed is not maintainable and would be barred by principle of res judicata.
5. No other ground has been urged by the learned counsel for the appellant.
6. Aforesaid ground is found to be patently fallacious keeping in view the recent judgment of the Hon'ble Supreme Court in the case of Amruddin Ansari (Dead)Through Lrs Versus Afajal Ali :2025 INSC 566 wherein the Hon'ble Supreme Court while considering the said issue has laid down that a fresh suit would not be barred if the earlier suit is dismissed in default.
7. Relevant para of the aforesaid judgment is reproduced hereunder:-
"8. Having heard the learned counsel appearing for the parties and having gone through the materials on record, two questions fall for our consideration:
i) Whether after the dismissal of the petition for restoration of suit under Order IX Rule 4 of the C.P.C. a fresh suit is maintainable?
ii) Whether after dismissal of the suit for default, a fresh suit is barred by res judicata?
9. Order IX Rule 4 of the C.P.C. reads thus:
?ORDER IX -Appearance of parties and consequence of non-appearance
4. Plaintiff may bring fresh suit or Court may restore suit to file.- 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, and if he satisfies the Court that there was sufficient cause for [such failure as is referred to in rule 2], or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.?
10. It appears that the High Court placed reliance on a decision of the Privy Council in Bhudeo vs. Musammat Baikunthi1. In the said decision, the Privy Council took the view that the two remedies prescribed under Order IX Rule 4 of the C.P.C. are not mutually exclusive. The Privy Council looked into the prefix ?or? and ultimately held as under:
"1. The point raised is whether the two remedies allowed to a plaintiff whose suit has been dismissed under Order IX, Rule 2 or 3, namely, the remedy of bringing a fresh suit or applying to have the dismissal set aside, are mutually exclusive. The words of Order IX, Rule 4, are materially the same as the words of Section 99, Act XIV of 1882, upon this point. The wording is not very happy. The use of the word "or" presents many difficulties. In spite of the fast that the word "or" is used and in spite of the fast that the remedy of bringing a fresh suit is placed first and the remedy of having the order set aside is plated second, I am of opinion that the lower Appellate Court is right. I cannot read into the words of the section the meaning that when a person, in good faith believing his suit to have been wrongfully dismissed, comes into Court to have that order set aside and fails to succeed, that person insure the penalty of not being permitted to bring another suit upon the same facts. The selection of the remedy of bringing a fresh suit involves the plaintiff in the necessity of paying a fresh Court-fee and a man would naturally wish to take his chance of getting his suit restored and avoiding payment of a fresh Court- fee. It does riot seem likely that it was the intention of the Legislature that if be took this chance, he was to be deprived of all other remedy in event of failure. The whole of the argument on the side of the appellant practically rests upon the use of the solitary word "or," and I do not think that there is sufficient force in that argument to support the appellant's contention. I, therefore, dismiss this appeal with costs."
11. We are in respectful agreement with the view taken by the Privy Council as regards the interpretation of Order IX Rule 4 of the C.P.C.
12. There is one another reason to take the view that a fresh suit is maintainable even after the rejection of the application filed under Order IX Rule 4 of the C.P.C., keeping in mind Order IX Rule 8 and Order IX Rule 9 respectively of the C.P.C.
13. Order IX Rule 8 of the C.P.C. reads 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.?
14. Order IX Rule 9 of the C.P.C. reads thus:
?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 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 suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.?
15. The plain reading of Order IX Rule 4 of the C.P.C. does not bar the filing of a fresh suit, of course, subject to limitation and if that were the intention, we might have found in it a provision similar to that in Order IX Rule 9 of the C.P.C. referred to above, which states that where a suit is dismissed under the Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action."
8. Keeping in view the aforesaid discussion, the appeal is dismissed.
9. Let a copy of this order be sent to the learned Trial court within a period of two weeks.
10. Learned trial court shall inform the claimants about this order within a period of four weeks.
11. Let trial court record, if any, be returned.
Order Date :- 22.5.2025 prateek