Fresh Suit Remain Maintainable After Dismissal for Default; Dismissal Does Not Operate as Res Judicata, Says Supreme Court

A bench of Justices J.B. Pardiwala and R. Mahadevan heard a Special Leave Petition challenging a Chhattisgarh High Court decision on the maintainability of a second suit filed after dismissal for default and the applicability of res judicata and the evidentiary value of a Wajib Dava document.

The Court dismissed the petition and affirmed the High Court's order which restored the trial court decree in favour of the plaintiffs. The Court held that Order IX Rule 4 of the Civil Procedure Code conferred two alternative and non‑exclusive remedies on a plaintiff whose suit was dismissed under Rules 2 or 3: the plaintiff could either apply for restoration or institute a fresh suit, and election of one remedy did not preclude the other. The Court, in its reasoning, observed: “In case of dismissal of suit under Order IX Rule 4 of the C.P.C. the plaintiff has both the remedies of filing of fresh suit or application for restoration of the suit. If he chooses one remedy, he is not debarred from availing himself of the other remedy. Both these remedies are simultaneous and would not exclude either of them.” The Court further noted that a dismissal for default under Order IX Rules 2 or 3 was neither an adjudication nor a decree and therefore “an order of dismissal of a suit or application in default ... is not the formal expression of an adjudication” and “shall not operate as res judicata.”

Background

The dispute arose from an original suit filed in 1996 by the father of the present plaintiffs for declaration, cancellation of a sale deed and permanent injunction; that suit was dismissed under Order IX Rule 2 of the C.P.C. and a subsequent application under Order IX Rule 4 for restoration was rejected and attained finality. The plaintiffs (legal heirs) then instituted a fresh suit in 2001 for identical reliefs. The trial court found for the plaintiffs on issues including ownership and the invalidity of the contested sale deed. On first appeal the decree was set aside and the first appellate court allowed the defendants’ appeal. The plaintiffs then filed a second appeal before the High Court of Chhattisgarh which framed three substantial questions of law concerning (i) whether failure to deposit deficit court fees rendered the decree unenforceable, (ii) whether the second suit was barred by res judicata, and (iii) whether the Wajib Dava (Ex. P‑1) could be relied upon despite lack of attesting witness evidence. The High Court answered all three questions in favour of the plaintiffs, set aside the first appellate court order and restored the trial court decree, relying inter alia on the Privy Council decision in Bhudeo v. Musammat Baikunthi and earlier High Court precedents which interpreted Order IX Rule 4 as permitting both remedies in the alternative.

On appeal to this Court, the petitioners contended that a fresh suit was not maintainable once a restoration application under Order IX Rule 4 had been rejected; that the Wajib Dava was hit by provisions of Mohammedan law and the Transfer of Property Act and was inadmissible being unregistered; and that the fresh suit was barred by res judicata. The Court examined the statutory language of Order IX Rules 4, 8 and 9, surveyed relevant precedents including Allahabad and Patna High Court decisions, and concluded that Rule 4 did not bar a fresh suit and that a dismissal for default under Rules 2 or 3 did not constitute a judgment or decree capable of operating as res judicata. The Court found no error in the High Court’s appraisal of the Wajib Dava and declined to interfere. The petition was dismissed and no interim directions were issued.

Case No.: Petition(s) for Special Leave to Appeal (C) No.11442/2023 (2025 INSC 566) Case Title: Amruddin Ansari (Dead) through LRs & Ors. v. Afajal Ali & Ors. Appearances: For the Petitioner(s): Mr. Abhinav Jaganathan, Advocate For the Respondent(s): Ms. V. Mohana, Senior Counsel