Dismissal Of Suit For Default Doesn't Bar Fresh Suit On Same Cause Of Action : Supreme Court

The Supreme Court recently held that the dismissal of a suit or application for default under Rules 2 or 3 of Order IX of the CPC does not prevent the filing of a fresh suit, as such dismissal does not constitute a judgment or decree, and therefore, the principle of res judicata does not apply.

“It is, therefore, clear that an order of dismissal of a suit or application in default under Rule 2 or Rule 3 of Order IX of the C.P.C. is neither an adjudication or a decree nor it is an appealable order. If that is so, such order of dismissal of a suit under Rule 2 or Rule 3 of Order IX of the C.P.C. does not fulfill the requirement of the term “judgment” or “decree”, inasmuch as there is no adjudication. In our considered opinion, therefore, if a fresh suit is filed, then such an order of dismissal cannot and shall not operate a res judicata.”, the court observed.

The bench comprising Justices JB Pardiwala and R Mahadevan was hearing the case in which the plaintiff's father's suit for declaration and permanent injunction was dismissed under Order IX Rule 2 (non-appearance of both parties).

The plaintiff then filed an application seeking restoration of the suit under Rule 4 of Order IX CPC, but it was also dismissed. This order attained finality as no challenge was made to it.

Thereafter, the plaintiff filed a fresh suit for the same reliefs under Rule 4, which was allowed by the trial court. Rule 4 allows a plaintiff to either file a fresh suit (subject to limitation) or apply for the restoration of the dismissed suit.

The First Appellate reversed the trial court's order, however, the High Court restored the trial court's order, upholding the plaintiff's fresh suit under Rule 4 of Order IX CPC. 

Aggrieved by the High Court's decision, the defendant approached the Supreme Court contending that the fresh suit on the same cause of action was barred by the principle of res judicata.

Rejecting the Appellant's argument, the order pronounced by Justice Pardiwala upheld the High Court's decision, holding that a fresh suit based on the same cause of action under Rule 4 was not barred by the principle of res judicata. The Court reasoned that the dismissal of the earlier suit for default under Rule 2 did not amount to a decree or a judgment that finally resolved the dispute, and therefore could not be treated as a decision on the merits warranting the application of res judicata.

“It is, therefore, evidently clear that a dismissal of a suit or application for default particularly under Rule 2 or Rule 3 of Order IX of the C.P.C. is not the formal expression of an adjudication upon any right claimed or the defence set up in a suit. An order of dismissal of a suit or application in default is also not appealable order as provided under Order XLIII of the C.P.C. If we read Order XLIII C.P.C., we will find that orders passed under Order IX, Rule 9 of the C.P.C. or Order IX Rule 13 of the C.P.C. are made appealable, but order passed under Order IX Rule 4 of the C.P.C. is not appealable. It is, therefore, clear that an order of dismissal of a suit or application in default under Rule 2 or Rule 3 of Order IX of the C.P.C. is neither an adjudication or a decree nor it is an appealable order. If that is so, such order of dismissal of a suit under Rule 2 or Rule 3 of Order IX of the C.P.C. does not fulfill the requirement of the term “judgment” or “decree”, inasmuch as there is no adjudication. In our considered opinion, therefore, if a fresh suit is filed, then such an order of dismissal cannot and shall not operate a res judicata.”, the court said.

In terms of the aforesaid, the Court dismissed the appeal and upheld the High Court's decision restoring the trial court's decision to allow the plaintiff's fresh suit against the dismissal in default under Rule 2 of Order IX CPC.

Case Title: AMRUDDIN ANSARI (DEAD)THROUGH LRS & ORS. VERSUS AFAJAL ALI & ORS.

Citation : 2025 LiveLaw (SC) 488

Click here to read/download the order

Appearance:

For Petitioner(s) :Mr. Vinay P. Tripathi, Adv. Mr. B. Shravanth Shanker, AOR Mr. Abhinav Jaganathan, Adv. Mr. B. Yeshwanth Raj, Adv. Mrs. Preeti Shukla, Adv.

For Respondent(s) :Ms. V. Mohana, Adv. Mr. Kaustubh Shukla, AOR Ms. Praveen Kumar Singh, Adv. Ms. Pushpanjali Singh, Adv. Ms. Bhavya Pande, Adv.