1. Heard learned counsel for the petitioners as well as O.P. Nos. 1 to 6.

2. T his civil revision is directed against the order dated 28.9.2006 passed by the 5th Subordinate Judge, Purnea, in T.S. No. 230 of 2004, whereby the Court below had rejected the prayer of the petitioners to hold the suit as barred under provisions as contained in Order IX Rule 9 of the Code of Civil Procedure (hereinafter referred to as "the Code") after determining the same as a preliminary issue.

3. A supplementary affidavit has been filed on behalf of the petitioners appending therewith order-sheet of the earlier Title Suit No. 198 of 1975 including the order dated 15.4.1989, dismissing the suit.

4. It is submitted that it would be manifest from the order dated 15.4.1989 passed in T.S. No. 198 of 1975 that the suit had been dismissed for default in the presence of the defendant, thus, it was a dismissal under Order IX Rule 8 of the Code. As a result of which the subsequent suit brought for same cause of action was barred as per the proviso under Order IX Rule 9 of the Code. It is submitted that the Court below had erred in holding that it was not clear as to under which provision the earlier su