SHAM LAL Vs. RAJINDER KUMAR MODI

JUDGEMENT

(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 deter-mination in this revision petition, which is directed against the order of learned Sub-Judge, Rajouri passed on 22/08/1989 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 30/04/1986 seeking declaration that gift-deed executed in favour of petitioner-defen-dant 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 30/08/1986. He filed several applica-tions to have the suit restored, but failed. Thereafter, he instituted a second suit on 13/02/1988. 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 mis-interpreted provisions of O. 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 iden-tical, First suit stood per se barred and determination of this did not call for any evidence being led by the petitioner.