KONAKANCHI KESAVA NARAYANA Vs. OBULAREDDIGARI VENKATAMMA

JUDGEMENT

(1.) This appeal raises a simple question of law. The 1st plaintiff is the daughter's son of Kesavamurthy, who died possessed of all the plaint scheduled properties. On his death, the properties devolved upon his widow Krishnamma and she sold the suit properties to her brother Aswathamayya under a registered sale deed marked as Exhibit B-1, dated 8th August, 1919. During her lifetime, her daughter Annapurnamma, a minor represented by her husband, filed O.S. No.72 of 1925 on the file of the District Munsif's Court, Gooty, for a declaration that the sale deed executed by her mother was not valid and binding as it was not supported by legal necessity. The suit was dismissed for default on 14th June, 1926. Annapurnamma died during the lifetime of Krishnamma. After the death of Krishnamma on 16th June, 1947, O.S. No.226 of 1949 was filed in the District Munsif's Court, Nandyal, for recovery of possession from the alienees from Aswathamayya. The District Munsif of Dhone, to whom the suit was transferred, held that the alienation was not valid and binding as it was not supported by legal necessity. On the question of res judicata and the bar of Order 9, rule 9, Civil Procedure Code, pleaded by the defendants, the District Munsif held that the terms of section 11 did not apply and that Order 9, rule 9, did not bar the present suit. On appeal, the Subordinate Judge of Kurnool confirmed the finding of the District Munsif on the merits and found that the alienation by the widow in favour of the brother was not valid and binding. He, however, held that the order passed on 14th June, 1926, operated as a bar under Order 9, rule 9, Civil Procedure Code, as also under section 11, Civil Procedure Code and dismissed the suit in respect of items 3 to 5. No appeal having been preferred by the 6th defendant in respect of items 1 and 2 purchased by him, the second appeal by the plaintiff is confined only to items 3, 4 and 5 in the posession of defendants 2 to 5 and 7.

(2.) Sri Bhujanga Rao, the learned advocate for the appellants, contends that the view of the Subordinate Judge on the applicability of section 11 and Order 9, rule 9, Civil Procedure Code, is erroneous. A plain reading of the terms of section 11 makes it clear that the section has no application when the prior suit was dismissed for default. The bar of section 11, Civil Procedure Code, applies only when the previous suit was heard and finally decided. As the previous suit was dismissed under Order 9, rule 8, Civil Procedure Code I fail to see how the terms of section 11 apply at all. It is unnecessary to set out any authority for this proposition. It is sufficient to refer to a passage from the judgment of Lord Watson in Chand Kour v. Partab Singh, (1898) L.R.15 I.A.156 : 16 Cal. 98 at 101(P.C.). "The dismissal of a suit in terms of section 102 (corresponding to Order 9, rule 8, Civil Procedure Code) was plainly not intended to operate in favour of the defendant as res judicata."

(3.) The decisions relied upon by the Subordinate Judge, Challagundla Varamma v. Madala Gopaladasayya, (1918) 35 M.L.J. 57 : I.L.R. 41 Mad. 659(F.B.), and Hussain Reddy v. Venkata Reddy, (1924) 47 M.L.J. 545, have really no bearing on this question. Sri Chinnappa Reddi, the learned advocate for the respondent, rightly refrained from supporting the judgment of the Court below on this ground. The next question that arises for consideration is whether the view of the Subordinate Judge that the terms of Order 9, rule 9, operate as a bar is correct. Order 9, rule 9, in so far as it is relevant runs as follows : "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".