Jammu & Kashmir High Court
Sham Lal vs Rajinder Kumar Modi And Ors. on 6 March, 1992
Equivalent citations: AIR 1993 JAMMU AND KASHMIR 50
ORDER
1. Is plaintiff (respondent No. 1) precluded from bringing a second suit in view of the bar created by Order 9, Rule 9 of the Code of Civil Procedure after his first suit was dismissed in default purportedly in exercise of jurisdiction under Order 9, Rule 8, CPC? This is the all important question requiring determination in this revision petition, which is directed against the order of learned Sub-Judge, Rajoun passed on August 22, 1989 holding the second suit maintainable on the ground of a different cause of action.
2. From the record it transpires that respondent No. 1 instituted his first suit on April 30, 1986 seeking declaration that gift-deed executed in favour of petitioner-defendant in respect of land measuring 375 sq. ft. situate at Rajouri is null and void. This suit was dismissed for non-appearance of plaintiff on August 30, 1986. He filed several applications to have the suit restored, but failed. Thereafter, he instituted a second suit on February 13,1988. Petitioner-defendant challenged its maintainability in view of the bar created by provisions of Order 9 Rule 9. A preliminary issue was struck which came to be decided by the trial Court against petitioner. Petitioner is aggrieved of this order and assail it primarily on the ground that trial Court had misinterpreted provisions of Order 9, Rule 9 of CPC as also the concept of "cause of action."
3. I have considered the rival contentions and the record. The focus of arguments on both sides has been on cause of action in the two suits. According to Mr. Kalgotra cause of action in two suits being substantially identical, First suit stood per se barred and determination of this did not call for any evidence being led by the petitioner.
4. However, the opposite view projected is that even though second suit is founded on a different cause of action, it was for petitioner-defendant to show on proof that it was similar as to attract provisions of Order 9, Rule 9.
5. It is settled legal position that Order 9, Rule 9 creates a bar for fresh suit, if it is founded on the same cause of action, as the provisional suit which is partly or wholly dismissed under Order 9, Rule 8 for non-appearance of plaintiff when the suit is called for hearing. Therefore, it will depend on facts and circumstances of each case whether or not a fresh suit is held to be barred, on satisfaction or otherwise of requirement of aforesaid two provisions. For example if dismissal of the suit is not covered under Order 9 Rule 8 but falls under some other provisions like Order 9, Rules 3 and 4 or Order 17, Rule 2, provisions of Order 9, Rule 9 will not get attracted to bar's fresh suit. In other words it is not in all cases of dismissal of a suit in default that a second suit is barred. Right to file a fresh suit survives even when earlier suit stands dismissed except under Order 9, Rule 8. Given regard to this position, it becomes necessary to extract the relevant provisions hereunder:--
"Order 9, Rule 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 the 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 : Decree against plaintiff by default bars fresh suit. 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 the suit.
2) No order shall be made under this rule unless notice of the application has been served on the opposite party."
6. On a plain reading of Rule 8, it comes out that where defendant appears and plaintiff does not appear. When the suit is called for hearing, Court shall dismiss the suit. An important ingredient of the provision is that plaintiff must absent himself on the day when the suit is called for hearing. It does not matter if it is any other date. But if it is the date when suit is called for hearing his absence invites its dismissal. Therefore, what is material is whether the date is one when the suit is called for hearing.
7. Word "Hearing" can admit of a very wide and liberal interpretation. It may include recording of evidence, consideration of arguments on some aspects of suit, examination of various question relating to suit and so on. The essential prerequisite is whether the Judge is applying his mind to some aspect of the case. If he is conducting some routine work or passing interlocutory orders, he cant be said to be "hearing the suit".
8. In a suit, "hearing" can be conducted at various stages. It does not necessarily imply the last hearing at the time of final adjudication. Going by the scheme and purpose of Order 9, C.P.C, hearing contemplated therein is the first hearing required to be conducted in terms of summons which may have been issued to the defendant under Order 5, Rule 1. It does not envisage an adjourned hearing which is taken care of by Order 17, C.P.C.
9. Having said so, it would be profitable to briefly touch upon the requirements contained in Order 9, Rule 9 which have to be satisfied to create a bar for fresh suit. These are as follows:--
A) Previous suit must have been wholly or partly dismissed under Order 9, Rule 8 i.e. for non-appearance of plaintiff on the date when suit was called for hearing. B) Fresh suit must be in respect of same cause of action. In other words cause of action in two suits must be identical.
10. In a case where dismissal of a previous suit does not fall within Order 9, Rule 8, a fresh suit is not barred. Similar is the case where cause of action of two suits is different.
11. It is in the light of this that peculiar facts and circumstances of the present case require consideration for determination whether plaintiffs second suit can be held to be barred. From the record, it transpires that first suit (No: 18/1986) was registered on April 30, 1986. When summones were issued to three defendants for 10th May, 1986. On this date defendant No: 1 appeared and sought opportunity for filing written statement. Service was not complete in respect of other two defendants and case was posted for July, 16, 1986, when counsel for defendant No: 1 submitted his power of attorney and sought further time to file written-statement. Service of other defendants was again found in- complete and next date fixed was August 26, 1986. On this date interim order recorded is "Await presence of plaintiff and defendants. List on August 30, 1986."
On August 30, 1986, following order was passed:--
"Plaintiff absent. Defendant present. No one was present for plaintiff on last date also. It appears that he does not want to pursue the suit. Therefore, suit is dismissed for want of prosecution."
The question that falls for determination is whether 30th August, 1986 can be said to be the date when the suit was called for hearing? If it can be so held then the case falls under Order 9, Rule 8 barring fresh suit in terms of Rule 9.
12. In my opinion, the date of dismissal of suit (30-8-1986) cannot be said to be the date when the suit was called for hearing and thus it can't be held that trial Court had passed order of dismissal under Rule 8. This is so for a variety of reasons. If date of hearing, as contemplated by Order 9, Rule 8 is taken to be date of first hearing after issue of summons to defendants, it was 10-5-1986 on which date plaintiff (respondent No : l) was present. There is no indication in the order-sheet that scheduled hearing on this date was adjourned to next date or dates including 30th August, 1986. Secondly, interim orders preceding order of dismissal i.e. 30-8-1986 do not indicate purpose of proceedings on this date. Going by the context of earlier order of August 26, 1986, it seems that suit was posed on 30-8-1986, for appearance of parties and completion of service of defendants 2 and 3. Lastly, it does not transpire from record that defendants 2 and 3 were present on 30-8-1986, when suit was dismissed. Even the summonses issued to these defendants are not borne by record. Therefore, could it be said that defendants were present on August 30, 1986. If they are to be taken as absent, which they were as per record, provisions of Rule 8 would not be attracted. All told, I am convinced that case did not fall under Rule 8 and, therefore, respondent No: 1 could not be precluded from instituting a fresh suit in the light of Rule 9.
13. Viewed thus, I feel that a vital aspect of the matter discussed hereinabove, had been overlooked in the heat of controversy surrounding "cause of action" of the two suits. Given regard to the conclusion reached. I do not consider it necessary to examine whether or not the cause of action of two suits instituted by respondent No: 1 is similar or different. Suffice it to say that fresh suit of respondent No: I is maintainable and the same shall proceed for trial by the Court below in accordance with provisions of law.
This revision petition is accordingly rejected.
14. Cases referred:
i. AIR 1972 Delhi 230;
ii. AIR I960 Patna 387;
iii. 1968 KLJ 116 : (AIR 1969 J & K 48);
iv. AIR 1978 Patna 48; and v. AIR 1965 SC 295.