Order 9, Rule 9 CPC does not bar the filing of fresh applications in the original suit for the same relief for which the applications filed earlier were dismissed by the Court.

ELIPE DHARMA RAO, J.

( 1 ) THIS Civil Miscellaneous Appeal was filed by the Transport corporation of India, through its Manager, aggrieved by the order dated 4-10-1991 in IA No. 612 of 1990 in OP No. 513 of 1983 on the file of the Chairman, Motor Accidents Claims Tribunal (Dist. Judge), Nizamabad, whereby it dismissed the above IPA filed by the appellant, on the ground that the petition which was filed for the same relief i. e. , which was filed for condonation of delay in filing the petition for setting aside the ex parte order is barred by Order 9, Rule 9 CPC and therefore, it is not maintainable.

( 2 ) IT is submitted by the learned Counsel for the appellant that the order passed by the Tribunal dismissing the IA No. 612 of 1990 in OP No. 513 of 1983 to condone the delay as not maintainable in law is illegal, erroneous and unjust. It is further submitted that the dismissal of IA No. 1378 of 1988 is not a bar for the maintainability of IA No. 612 of 1990 and therefore, should have allowed IA No. 612 of 1990 in the interest of justice. It is further submitted that Section 141 CPC read with Order 9, Rule 9 CPC do not prohibit the appellant from filing applications in the original suits for the same relief, when the first petition is dismissed by the Court. Therefore the Tribunal should have entertained IA No. 612 of 1990.

( 3 ) TO appreciate the contention of the learned Counsel for the appellant, it is better to have a glance of the facts of the case: That OP No. 513 of 1983 was filed for grant of compensation by the claimants, wherein the appellant was set ex parte in the OP and a compensation of Rs. 15,000/-under no fault liability was awarded under Section 92-A of the Motor Vehicles Act on 16-10-1984 and on 4-11-1988 the appellant filed a petition to set aside ex parte order and condone the delay in filing the petition in for setting aside the order under Section 5 of the Limitation Act. On 13-9-1989, the said appellant was set ex parte and the IANo. 1378 of 1988 was dismissed for default. Then IA 612 of 1990 was filed for the same relief to condone the delay from 15-11-1984 to 19-6-1990. The Tribunal examined the maintainability of the IA No. 612 of 1990 and after examining PW1, Tapan Roy, Branch Manager, under the petitioner-appellant, the Tribunal dismissed [a No. 1378 of 1988. Earlier the petition IANo. 1378 of 1988 was dismissed for default, as the petitioner therein did not appear on the date of hearing i. e. 13-9-1989. The learned Judge observed that the dismissal falls under Order 9, Rule 9 CPC and when the dismissal falls under Order 9 Rule 8 CPC, then Order 9, Rule 9 CPC governs the circumstances and as such the petitioner can file a petition for setting aside the order of dismissal. Order 9, Rule 9 CPC bars fresh petition being filed, but the petitioner has filed fresh petition instead of filing petition under Order 9 Rule 8 CPC for setting aside the order under which the earlier petition was dismissed on 13-9-1989. The Tribunal further observed that the present petition which was filed for the same relief i. e. which was filed for the relief of condonation of delay in filing the petition for setting aside the ex parte order is barred by Order 9, Rule 9 CPC.

( 4 ) ATTACKING the reasons given by the learned Chairman of the Tribunal, the Counsel for the appellant has submitted that Order 9, Rule 9 CPC prohibits filing of suit for the same relief which was dismissed earlier, but it does not bar filing of fresh applications in the original suit for the same relief for which Hie applications filed earlier were dismissed by the Court and therefore, the reasoning given by the Tribunal is contrary to Order 9, Rule 9 CPC. In support of his contention he relied on a judgment of this Court between Medam Sankaranarayana v. Gaddala Tirupathi Rao and others, AIR 1971 AP 332, wherein the learned Judge, in similar circumstances, considered the import of Order 9, Rule 9 read with Section 141 CPC.

( 5 ) THE facts leading to the sa

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