Dismissal of a Suit for Default Does Not Prevent Filing a Fresh Suit on the Same Cause of Action, and the Principle of Res Judicata Does Not Apply : Supreme Court
The Supreme Court in Amruddin Ansari (Dead) through LRs & Ors. v. Afajal Ali & Ors. held that a suit or application dismissed for default under Rules 2 or 3 of Order IX of the CPC does not prevent the filing of a fresh suit. Such a dismissal does not constitute a judgment or decree, so the principle of res judicata does not apply. The Court clarified that an order of dismissal under Rule 2 or Rule 3 is neither an adjudication nor an appealable order, and it does not meet the criteria for a "judgment" or "decree" as there is no merit-based adjudication. Therefore, a fresh suit can be filed, and the dismissal will not operate as res judicata.
The bench, consisting of Justices JB Pardiwala and R. Mahadevan, was hearing a case where the plaintiff’s father’s suit for declaration and permanent injunction was dismissed under Order IX Rule 2 due to the non-appearance of both parties. The plaintiff filed an application for restoration under Rule 4, but it was dismissed, and this order became final as no challenge was made. Subsequently, the plaintiff filed a fresh suit for the same reliefs, which the trial court allowed under Rule 4. However, the First Appellate Court reversed this decision, but the High Court restored the trial court's order, upholding the plaintiff’s right to file the fresh suit.
The defendant appealed to the Supreme Court, arguing that the fresh suit was barred by res judicata. The Court rejected this argument, affirming the High Court's decision. It held that the dismissal of the earlier suit for default under Rule 2 was not a final adjudication, and thus, the principle of res judicata did not apply.
The Court emphasized that a dismissal for default under Rules 2 or 3 of Order IX is not a formal adjudication of any rights and is not appealable, unlike dismissals under Rules 9 or 13. Therefore, such dismissals do not qualify as a judgment or decree. The Court dismissed the appeal and upheld the High Court’s ruling, allowing the plaintiff's fresh suit.