In CWP-13371-1999-PUNJ HC- When order dismissing suit for non prosecution or default is not made on merits, it is not barred by res-judicata; Rule 4 in Order IX CPC rather made exception to this principle of res-judicata: P&H HC
Justices Sureshwar Thakur & N.S. Shekhawat [27-09-2022]

Read Order: Balkar Singh and Another v. Commissioner (Joint Development Commissioner) Panchayat Lands, Sector – 22, Chandigarh and Others

Monika Rahar

Chandigarh, October 10, 2022: The Punjab and Haryana High Court has held that when a suit is dismissed for default, the plaintiff can institute a fresh suit or file an application for setting aside the order of dismissal in default under Rule 4 of Order IX of the CPC and such suit is not decided on merits, thus, a subsequent suit is not barred by the principle of res-judicata. 

The Division Bench of Justice Sureshwar Thakur and Justice N.S. Shekhawat held in this respect,“... the principle of Res-judicata… in Section 11 of the CPC, works as an estoppel against the reinstitution of a fresh suit, only when in the earlier suit a decision on merits rather is made by the learned Court concerned. Necessarily when an order dismissing for non prosecution or for default hence is made on the plaintiff's earlier suit… the same is not made on merits, resultantly the legislature has, in the above scenario through engrafting Rule 4 in Order IX CPC rather made an exception to the principle of Res-judicata, as cast in Section 11 of the CPC. Necessarily when the dismissal of a suit for non prosecution or for default of appearance of the plaintiff, is but not a verdict on merits.”

A petition under Section 7 of the Punjab Village Common Lands Act, 1961 ('the Act') was instituted by the Gram Panchayat, Mand Kulan before the Collector for ejectment of the respondents from the panchayat land as they raised Haveli there. This petition was allowed. 

The challenge raised before the Appellate Authority was dismissed. Hence the instant petition before the High Court was filed. 

The Counsel for the petitioner pointed out that before the filing of the instant case by the Gram Panchayat before the Collector, a similar petition was filed earlier seeking the relief on the same cause of action. The earlier petition was dismissed in default. The Counsel thus argued that the instant (second) petition before the collector was barred by the principle of res judicata. 

The Court discarded this argument by drawing an interference from a reading of the provisions, as carried in Rules 3 and 4 of Order IX of the CPC. From a reading of these provisions, the Court opined that when the plaintiff omits to cause his appearance before the Court on the date fixed, the Court becomes empowered to make an order that the suit be dismissed. 

However, the Bench added, Rule 4 of Order IX CPC, permits the plaintiff whose earlier suit is dismissed for default, to either file a fresh suit on the same cause of action or to make an application for setting aside the order dismissing his earlier suit in default, provided absence was on account of a sufficient cause. 

“On such sufficient cause being put forth before the learned Court concerned, the latter becomes empowered to either permit the plaintiff whose earlier suit has been dismissed for default, to bring a fresh suit, or as the case may be, allow his application for setting aside the order dismissing in default the apposite suit”, the Bench added. 

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Thus, from the above the bench opined, 

“... the above statutory leverages bestowed upon the errant plaintiff, does but work, as an exception to the principle of Res-judicata as cast in Section 11 of the CPC. The reason is but simple, that the principle of Res-judicata, as, cast in Section 11 of the CPC, works as an estoppel against the reinstitution of a fresh suit, only when in the earlier suit a decision on merits rather is made by the learned Court concerned.”

Thus, the Bench held that when an order dismissing for non prosecution or for default hence is made on the plaintiff's earlier suit, it is not made on merits, resultantly the legislature has, in the above scenario through engrafting Rule 4 in Order IX CPC rather made an exception to the principle of res-judicata. 

“Necessarily when the dismissal of a suit for non prosecution or for default of appearance of the plaintiff, is but not a verdict on merits”, Justice Thakur held. 

Therefore, the Court was of the view that the subsequent suit did not invite the vice of res-judicata, rather it became protected by the mandate of Rule 4 of Order IX CPC. 

In view of the above, the Court did not find any merit in the writ petition and the same was dismissed.