A fresh suit is maintainable after dismissal under Order IX Rule 4 of the C.P.C., and res judicata does not apply to non-adjudicative dismissals.

ORDER :

J.B. PARDIWALA, J.

1. This petition arises from the judgment and order passed by the High Court of Chhattisgarh at Bilaspur dated 24.10.2019 in Second Appeal No.424/2005 by which the Second Appeal filed by the respondents herein (original plaintiffs) came to be allowed and thereby, the judgment and order passed by the First Appellate Court reversing the decree passed by the Trial Court came to be set aside.

2. For the sake of convenience, the petitioners herein shall be referred to as the original defendants and the respondents herein shall be referred to as the original plaintiffs.

3. The facts giving rise to this petition may be summarized as under:

a. The history of this litigation goes something like this. In the first instance, the father of the original plaintiffs instituted a Civil Suit No.37A/1996 in the Court of Ld. Civil Judge, Ramanujganj, District- Sarguja, Chhattisgarh for declaration, cancellation of sale deed and a permanent injunction. It appears from the materials on record that the said suit came to be dismissed under the provisions of Order IX Rule 2 of the Civil Procedure Code, 1908 (for short “the C.P.C.”). In such circumstances, the father of original plaintiffs preferred an application under Order IX Rule 4 for restoration of the suit. The said application under Order IX Rule 4 of the C.P.C. came to be dismissed. The matter was not carried further. The order passed by the Trial Court rejecting the application filed under Order IX Rule 4 of the C.P.C. attained finality.

b. Later, the original plaintiffs (legal heirs) instituted a fresh suit bearing No.27A/2001 in the Court of Civil Judge, 1st Class, Ramanujganj, Tehsil Paal, District-Sarguja, Chhattisgarh for the same reliefs.

c. The Trial Court framed the following issues:

“1. Whether the Plaintiffs are having ownership right over the suit property mentioned in Appendix-A attached to the suit?

2. Whether the executed Sale Deed dated 19.12.86 is having no effect on the plaintiffs being fake, fabricated and illegal?

3. Whether the Plaintiffs are entitled for grant of a decree of permanent injunction against the defendants with respect to the suit land that the Defendant Nos.1,2,3, 4 and 5 themselves and their relatives, friends, servants and agents be restrained from claiming ownership or entering into the suit property or creating any hindrance thereupon?

4. Whether daughters of Late Rahmat Ali are necessary parties to the suit?

5. Whether the principal of res judicata is applicable in the present suit?

6. Whether there is lesser court fee paid in the suit?

7. Relief and costs?”

d. All the aforesaid issues came to be answered in favour of the plaintiffs.

e. The original defendants being dissatisfied with the judgment and decree passed by the Trial Court challenged the same before the District Court in First Appeal. The First Appeal came to be allowed. The judgment and decree passed by the Trial Court was set aside.

f. Being dissatisfied with the judgment and order passed by the First Appellate Court, the plaintiffs went before the High Court in Second Appeal.

g. The High Court formulated the following three substantial questions of law for its consideration:

“i) "Whether the learned first Appellate Court was justified in holding that since the decree holder did not deposit the deficit court fees within the period allotted by the trial Court, the decree becomes in executable, is correct particularly in view of the fact that the deficit court fees has been deposited by the plaintiff/decree holder with the permission of the trial Court?"

ii) "Whether the finding. of the first Appellate Court that the instant suit was not maintainable in view of the doctrine to res judicata, is justified in the absence of any evidence that the earlier suit was between the same parties and for the same relief?"

iii) "Whether the finding of the appellate Court that the document titled as Vazib Dava of Ex.P.1, by which the patta holder Abdul Rajak has relinquished his right in favour of the