ASIA BIVI Vs. SEHU MOHAMED ROWTHER

JUDGEMENT

(1.) The plaintiffs are the appellants before us. Their suit has been dismissed by the Lower Courts in limine without being tried on the merits on the ground that it is barred by Order IX Rule 9 of the Civil Procedure Code by reason of the order in the prior suit C. S. No. 494 of 1918, brought by them against practically the same defendants regarding the same properties, dismissing it for default under Rule 8. The Lower Courts have held that the cause of action for the two suits is one and the same. The learned Vakil for the appellants contends that they were wrong in so holding.

(2.) In considering the applicability of Rule 9 it must be carefully kept in view that it has not the effect of res judicata for there is no adjudication on any of the issues in the first case. This is pointed cut by the Privy Council in Chand Kour v. Partap Singh. (1888) I.L.R. 16 C. 98 The rule merely bars a second suit on the same cause of action. In that case their Lordships observe "The cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It, refers entirely to the grounds set forth in the plaint as the cause of action, or in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour." Applying this view they held that the dismissal for default of a prior suit by the reversioners for a declaration and injunction restraining the widow from alienating her husband s properties was no bar to a subsequent suit by them to declare a gift made by the widow after the disposal of the first suit was not valid against them. The ground of claim in one suit was the intention of the widow to alienate and of the other suit a completed alienation by her.

(3.) To decide the question before us we have therefore to examine the allegations in the two plaints in C. S. No. 494 of 1913 and in the present suit to see if the two suits are based on the same cause of action. In the first suit plaintiffs claimed title to a fractional share in the plaint properties as the heirs under Muhamraadan Law of their deceased father Sheik Meera Rowther. They stated that their mother has illegally sold their share to their brother the 2nd defendant who had subsequently mortgaged the whole property to the 9th defendant and that he had brought a suit and obtained a decree for sale of the mortgaged properties. They contended that the sale was invalid against them as their mother had no authority to act as their guardian under the Mahomedan Law and deal with their properties and that even if she had the sale was vitiated by fraud and other grounds stated. Alleging themselves to be in joint enjoyment of the properties with their co-sharers they sued for declaration of their title and for an injunction restraining the 9th defendant from executing his decree. That was the suit that was dismissed for default. In the present suit they no doubt allege the same title and the same reasons for treating as invalid against them the sale, the mortgage and the decree as well as the subsequent Court auction sale and purchase in execution of that decree which took place since the dismissal of the first suit. But they also aver they are no longer willing to remain joint with their co-sharers and pray that the properties may be divided by metes and bounds and separate possession of their share may be given to them. The first suit was for a declaration to remove a cloud on their title and the second one for partition and separate possession of the lands falling to their share.