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2. For the sake of convenience, the petitioners herein shall be referred to as the original defendants and the respondents herein shall be referred to as the original plaintiffs.

3. The facts giving rise to this petition may be summarized as under:

Date: 2025.04.24 16:48:10 IST Reason:

a. The history of this litigation goes something like this. In the first instance, the father of the original plaintiffs instituted a Civil Suit No.37A/1996 in the Court of Ld. Civil Judge, Ramanujganj, District- Sarguja, Chhattisgarh for declaration, cancellation of sale deed and a permanent injunction. It appears from the materials on record that the said suit came to be dismissed under the provisions of Order IX Rule 2 of the Civil Procedure Code, 1908 (for short “the C.P.C.”). In such circumstances, the father of original plaintiffs preferred an application under Order IX Rule 4 for restoration of the suit. The said application under Order IX Rule 4 of the C.P.C. came to be dismissed. The matter was not carried further. The order passed by the Trial Court rejecting the application filed under Order IX Rule 4 of the C.P.C. attained finality.

ANALYSIS

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:

1 (1921) 63 I.C. 239

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.”

17. From bare reading of the aforesaid two provisions i.e. Rule 4 and Rule 9 of Order IX of the C.P.C., it is manifestly clear that under Rule 4 of Order IX of the C.P.C., the legislature in express term has not precluded the plaintiff from filing a fresh suit on the same cause of action in the event suit is dismissed under Rule 2 or Rule 3 of Order IX of the C.P.C., whereas Rule 9 of Order IX debars the plaintiff from filing a fresh suit in a case where the suit is dismissed under Rule 8 of Order IX of the C.P.C. The only remedy provided for such dismissal is to file an application under Rule 9 of Order IX of the C.P.C. for restoration of suit.