1. Rule returnable forthwith. Heard submissions at the bar.

2. The Petitioner was facing the eviction proceedings initiated at the instance of respondent no.4/Trust to evict the petitioner from the agricultural land bearing Survey No.52/2, Gat No.10, admeasuring 3 Hectares, 76 R situated at Mouza Sukali, Tq. Daryapur, District Amravati the land owned by the Trust. The proceedings were dismissed on 15.7.2002. As the Trust did not apply for restoration, the dismissal order had attained finality. The Trust filed fresh eviction proceedings being Tenancy Case No.59/27/Sukali/3/2009-2010 under Section 120C of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as “the BTAL Act”) on the same grounds as in earlier eviction case. Respondent no.2, despite this objection, decided the case on merits and allowed the case for summary eviction. The petitioner had challenged the order in Revision No.Ten/B/78/2012. The revision was dismissed by the Maharshtra Revenue Tribunal by judgment, dated 8.1.2014.

3. The question posed is as to whether the suit dismissed on the ground of default in appearance of the plaintiff bars a fresh suit on the same cause of action in view of the Order IX, Rule 8 of the Code of Civil Procedure. The question was under consideration of learned Single Judge of this Court in the ruling Premachand Lakhanji Jain vs. Smt. Lilabai Krishnath Surve, 1998 (3) Mah LJ 252. In that Civil Revision application, suit was dismissed for default in terms of the Order IX, Rule 8 of Civil Procedure Code and it was held that respondent no.1 was not entitled to file fresh suit on the same cause of action, it being for the same relief, taking shelter of Order IX, Rule 4 of the Code of Civil Procedure.

4. In Ramesh Sitaram vs. Pandurang 2012, (6) Mh.L.J. 360, the Single Judge of this Court held that fresh suit was barred once it is found that previous suit was dismissed.

5. In the case of Collector of Bilaspur vs. Ajit P.K. Jogi, (2011) 10 SCC 357, it was held that dismissal of the Writ Petition without hearing on merits does not amount to resjudicata in subsequent proceedings. To attract the principle of res judicata, the previous decision must have been on merits and not for the default of the party. Reference is also made to the ruling reported in AIR 2008 Patna 5, Mrs. Niloufer Siddiqui and another vs. Indian Oil Corporation Ltd. and Others ( para 11) to argue that previous decision in the suit on title must be on merits to attract principle of res judicata.

6. Thus, the principle of res judicata cannot be attracted to the case which was not decided on merits earlier. Approach of the competent Court must be to decide the case on merits than considering sheer technicality that the previous eviction case was dismissed long back on account of default of appearance by the landlord/Trust. To my mind, eviction of the defaulting tenant or his representative who refuses to vacate do furnish continuing periodical cause of action for the landlord to evict the tenant refusing to vacate the tenement i.e. subject matter of tenancy.

7. Order IX of the Code of Civil Procedure deals with appearance of parties and consequences of disappearance. The objective of procedural provision is that parties are expected to attend the Court punctually on the date fixed for their appearance/attendance, at least through their pleaders when appointed, if not in person. Provisions are intended to ensure that the party who filed the suit take diligent steps to pursue progress of the suit instituted. Rule 3 indicates that if none of the party appears, the Court is empowered to dismiss the suit. Rule 4 permits the plaintiff whose suit is dismissed at preliminary stage on account of failure to serve summons or when defendant, who is served alone, appears and suit is dismissed to get the suit restored upon showing sufficient cause for the absence. In such case, Rule 4 permits the fresh suit subject to the law of limitatio