PAWAN KUMAR Vs. MANGLI DEVI

JUDGEMENT

(1.) THIS is plaintiffs' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code'), challenging concurrent findings of fact recorded by both the Courts below to the effect that the suit of the plaintiff-appellants seeking declaration and permanent injunction was not maintainable in view of the bar created by Order 9 Rule 9 of the Code. It has been concurrently found by both the Courts below that the parties in the previous suit as well as in the suit from which the instant proceedings have arisen are the same. The suit property as well as cause of action in both the suits is also the same. It has further been found that earlier suit was dismissed under Order 9 Rule 8 C.P.C. on 24.09.1997. The contention of the plaintiff-appellants that no one has put in appearance on behalf of the parties and, therefore, suit would be deemed to be dismissed under Order 9 Rule 3 has not been accepted by both the Courts below, because a perusal of the order dated 24.09.1997 reveals that no one has appeared on behalf of the plaintiff-appellants and, therefore, it must be construed to mean that the suit was dismissed under Order 9 Rule 8.

(2.) MR . C.B. Kaushik, learned counsel for the plaintiff-appellants has advanced the same arguments which have been found without any merit by the Courts below, namely that the counsel for both the parties were not present on 24.09.1997 when the earlier suit registered as Civil Suit No. 84 of 1997 was dismissed. Therefore, learned counsel has insisted that the dismissal of the suit should be construed as the dismissal under Order 9 Rule 3 of the Code and, therefore, the second suit would certainly be maintainable.

(3.) A perusal of the above-mentioned order clearly shows that in pre-lunch session, the suit was called several times and no one has appeared on behalf of the plaintiff, whereas for the defendant-respondents, Shri S.P. Jindal, Advocate was present. The trial Court had ordered the hearing of the suit after lunch. In the post-lunch session, counsel for the defendant-respondents was again present, but none had appeared for the plaintiff-appellants. A perusal of order passed in pre-lunch session further shows that the plaintiff-appellants were not represented and, therefore, it has to be recorded as a dismissal in default under Order 9 Rule 8 of the Code, as the trial Court itself has observed. Therefore, is no room to entertain any doubt that the suit has actually been dismissed under Order 9 Rule 8 of the Code, and findings recorded by both the Courts below deserve to be accepted. The reliance of the learned lower Appellate Court on a judgment of the Supreme Court in the case of Suraj Rattan Thirani v. Azamabad Tea Company, AIR 1965 SC 295 is meritorious and the reliance on the aforementioned judgment deserves to be approved. The Supreme Court has held that the ban imposed by the provisions Order 9 Rule 9 debarring the filing of a fresh suit on the same cause of action either by the plaintiff himself or any one claiming under him is mandatory. Both the Courts have also found after examining the file of the earlier suit, namely Civil Suit No. 84 of 1997 that the cause of action in both the suits was same and, therefore, the bar created by Order 9 Rule 9 has to be imposed. The judgment and decree passed by Courts below deserves to be upheld and no exception has been provided to interfere in the findings of both the Courts. No question of law would arise for determination of this Court warranting admission of the appeal. Therefore, the appeal is liable to be dismissed.