Source: Supreme Court 

Why in News? 

A bench of Justice JB Pardiwala and Justice R Mahadevan held that after dismissal of the suit for default under Order IX Rule 2 or 3, a fresh suit is not barred by res judicata 

• The Supreme Court held this in the case of Rajeev Gupta & Ors v. Prashant Garg & Ors. (2025). 

What was the Background of Amruddin Ansari (Dead) Through Lrs & Ors v. Afajal Ali & Ors. (2025) Case?   

• The petitioners (original defendants) are challenging a judgment from the High Court of Chhattisgarh that allowed a Second Appeal filed by the respondents (original plaintiffs). 
• The father of the original plaintiffs first filed Civil Suit No.37A/1996 seeking declaration, cancellation of sale deed, and permanent injunction, but this suit was dismissed under Order IX Rule 2 of the Civil Procedure Code, 1908 (CPC). 
• An application to restore this suit was filed under Order IX Rule 4 but was dismissed, and this dismissal attained finality as it was not challenged further. 
• Later, the original plaintiffs (legal heirs) filed a fresh suit (No.27A/2001) seeking the same reliefs as the previous suit. 
• The Trial Court ruled in favor of the plaintiffs after considering seven issues, including ownership rights, validity of the sale deed, and applicability of res judicata. 
• The original defendants appealed this decision to the District Court (First Appeal), which allowed their appeal and set aside the Trial Court's judgment. 
• The plaintiffs then filed a Second Appeal to the High Court, which formulated three substantial questions of law relating to court fees, res judicata, and evidence regarding a relinquishment document. 
• The High Court allowed the Second Appeal, answering all three questions in favor of the plaintiffs, thereby setting aside the First Appellate Court's judgment and restoring the Trial Court's decree. 
• The original defendants have now approached the Supreme Court with the current petition challenging the High Court's decision. 

What were the Court’s Observations? 

• The two questions to be answered in this case were: 
  • Whether after the dismissal of the petition for restoration of suit under Order IX Rule 4 of the CPC a fresh suit is maintainable? 
  • Whether after dismissal of the suit for default, a fresh suit is barred by res judicata? 
• With Respect to Issue (i): 
  • The Court held that a plain reading of Order IX Rule 4 of CPC does not bar filing of a fresh suit. The Court contrasted this with Order IX rule 9 of CPC. 
  •  From the bare reading of two provisions i.e. Rule 4 and Rule 9 of Order IX it is clear that under Rule 4 the legislature has not precluded the plaintiff from filing a fresh suit on the same cause of action in the event the suit is dismissed under Rule 2 and Rule 3 of Order IX, whereas Rule 9 debars the plaintiff from filing a fresh suit in case the suit is dismissed. 
  • Further, teh Court held that it can be concluded that in case of dismissal of suit under Order IX Rule 4 of CPC the plaintiff has both the remedies of filing fresh suit or filing an application for restoration of suit. 
  • Both the above remedies are simultaneous and do not exclude each other.  
• With Respect to Issue (ii): 
  • The Court discussed that the principle of res judicata is based on the maxim “nemo debet bis vexari pro una et eadem causa”, which means that no man shall be vexed twice for the same cause. 
  • According to this doctrine, an issue or a point once decided and attends finality, should not be allowed to be reopened and re-agitated in a subsequent suit. In other words, if an issue involved in a suit is finally adjudicated by a Court of competent jurisdiction, the same issue in a subsequent suit cannot be allowed to be re-agitated. 
  • It is, therefore, clear that for the application of principle of res judicata, there must be an adjudication of an issue in a suit by a court of competent jurisdiction. 
  • The Court then discussed as to what would constitute a decree or judgment. 
  • The Court observed that from a plain reading of the term “decree” it is manifestly clear that to constitute a decree, there must be a formal expression of an adjudication which conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit, but the decree shall not include any adjudication from which an appeal lies as an appeal from an order or any order of dismissal for default. 
  • It is, therefore, evidently clear that a dismissal of a suit or application for default particularly under Rule 2 or Rule 3 of Order IX of the C.P.C. is not the formal expression of an adjudication upon any right claimed or the defence set up in a suit. 
  • In view of the above the Court held that if a fresh suit is filed then such an order of dismissal shall not operate as res judicata. 
• In view of the above facts the Court held that there are no good grounds to interfere with the judgment of the High Court and hence the petition in the facts of the present case failed. 

What is an Order of Dismissal for Default? 

• An order of dismissal for default can be passed in following circumstances: 
  • Order IX Rule 2 of CPC provides for dismissal of suit where summons not served in consequence of failure of plaintiff to pay costs: 
    • The court may dismiss a suit if on the fixed date it is found that summons has not been served on the defendant due to the plaintiff's failure to pay required court fees or postal charges. 
    • The court may also dismiss a suit if the plaintiff fails to present copies of the plaint as required by rule 9 of Order VII. 
    • However, the court cannot dismiss the suit under this provision if the defendant appears in person or through an authorized agent on the fixed date, despite the failure of service of summons. 
    • This rule provides a mechanism for courts to address procedural failures on the part of plaintiffs in the early stages of litigation. 
  • Order IX Rule 3 of CPC provides for dismissal of suit where neither party appears when the suit is called on for hearing. 
  • Order IX Rule 4 of CPC provides that the plaintiff may bring fresh suit or Court may restore suit to file: 
    • When a suit is dismissed under rule 2 or rule 3, the plaintiff has two options available as remedies. 
    • The plaintiff may file a fresh suit, subject to the applicable law of limitation. 
    • Alternatively, the plaintiff may apply to set aside the dismissal order by filing an application under this rule. 
    • If the plaintiff can demonstrate sufficient cause for the failure referred to in rule 2 (failing to pay court fees or provide plaint copies) or for non-appearance under rule 3, the court shall set aside the dismissal. 
    • Upon setting aside the dismissal, the court will appoint a new date for proceeding with the suit. 
    • This rule provides a mechanism for plaintiffs to revive suits that were dismissed on procedural grounds rather than on merits.
• Order IX Rule 8 of CPC provides for the procedure where only defendant appears: 
  • If the plaintiff fails to appear when the case is called for hearing, but the defendant appears, the court shall dismiss the suit. 
  • However, if the defendant admits the plaintiff's claim in full despite the plaintiff's absence, the court shall pass a decree against the defendant based on such admission. 
  • If the defendant admits only part of the claim, the court shall pass a decree against the defendant for the admitted portion. 
  • For any portion of the claim not admitted by the defendant, the court shall dismiss the suit. 
  • This rule addresses situations where the plaintiff abandons the proceedings while the defendant is ready to proceed, balancing judicial efficiency with the defendant's right to have admitted liability formally recognized. 
• Further Section 2 (2) of CPC which defines decree provides that any order of dismissal for default does not fall under the definition of decree. 
• Also, order of dismissal of a suit or application in default is also not appealable order as provided under Order XLIII of the C.P.C.  
• Thus, it is clear that an order of dismissal of a suit or application in default under Rule 2 or Rule 3 of Order IX of the C.P.C. is neither an adjudication or a decree nor it is an appealable order.