The Second Suit was not barred under the provisions of Order IX Rule 9 of CPC due to the distinct cause of action, description of properties, and prayers in both the suits.

JUDGMENT :

RAJESH S. PATIL, J.

1. Heard. By consent of the parties, taken up for final disposal at the stage of admission.

FACTS:

2. The Respondent no. 1 to 6 herein are the Original Plaintiffs who had filed suit for partition, declaration, possession and perpetual injunction. The applicant herein is the original defendant, who, by way of this Civil Revision Application, has challenged the order dated 29.04.2019 passed below Exh.71 in R.C.S. No. 1724/2012 by 11th Joint Civil Judge J.D. Aurangabad, thereby rejecting application Exh.71. The said application Exh.71 was preferred under the provisions of Order VII Rule 11(d) of the Code of Civil Procedure, seeking rejection of the plaint in R.C.S. No. 1724/2012, being barred by law as per Order IX Rule 8 of CPC. The said application Exh.71 was filed on 29.10.2018. After hearing both the parties, the said application was rejected on 29.04.2019. This Court, vide order dated 20.04.2022, issued notice for final hearing to the respondents and stayed the trial.

SUBMISSIONS:

3. The applicant’s case is that on the same cause of action the plaintiffs had earlier filed suit being R.C.S. No. 269/2009 for said relief and the said suit was dismissed for non-prosecution. It is therefore the case of the applicant’s that a fresh suit on the same cause of action was barred by law under the provisions of Order IX Rule 9 of the CPC.

4. It is further argued that the contents of both the suits are almost same and the present applicant is the cousin of original plaintiffs. It is also argued that the First Suit filed by the plaintiffs was dismissed in default by order dated 28.06.2011. It is argued that the Second Suit was filed with identical facts on 03.09.2012 with same cause of action and similar kind of prayers with clever draftmanship. The parties in both the suits are the same. It is also argued that if the plaintiffs were desirous of seeking any relief from the court, the plaintiffs should have restored the earlier suit by filing an application for restoration before the same court. The applicant herein (orig. defendant) had filed an application Exh.71 on 29.10.2018 under the provisions of Order VII Rule 11(d) of the CPC stating therein that the suit is barred by the provisions of Order IX Rule 9 of CPC, however, learned Judge without taking into consideration the legal provisions, rejected his application Exh.71, hence he preferred the present Civil Revision Application.

Learned counsel Mr. Amit Vaidya for the applicant relied upon the following judgments:

(i) Suraj Rattan Thirani and Others vs. Azamabad Tea Co. Ltd. and Others, AIR 1965 SC 295. Paragraph no. 30 reads thus:

30. We consider that the test adopted by the Judicial Committee for determining the identity of the cause of action in the two suits in Mohammed Khalil Khan vs. Mahbub Ali Mian, 75 Ind App 121 : AIR 1949 PC 78 is sound and expresses correctly the proper interpretation of the provision. In that case Sir Madhavan Nair, after an exhaustive discussion of the meaning of the expression “same cause of action” which occurs in a similar context in Para (1) of O. 11 R. 2 of the Civil Procedure Code, observed:

“In considering whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, the test to be applied is are the causes of action in the two suits in substance-not technically-identical?”

(ii) C.S. Ramaswamy vs. V.K. Senthil and Others, 2022 Live Law (SC) 822. Paragraph nos. 7.6 to 7.8 reads thus:

7.6 From the aforesaid, it can be seen that most of the cause of actions alleged are much prior to the execution of the registered Sale Deeds.

7.7 Even the averments and allegations with respect to knowledge of the plaintiffs averred in paragraph 19 can be said to be too vague. Nothing has been mentioned on which date and how the plaintiffs had the knowledge that the document was obtained by fra