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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
AMITENDRA KISHORE PRASAD
Umakant Rath, S/o. Late Govind Rath – Appellant
Versus
Deenbandhu Rath, S/o. Late Govind Rath – Respondent
Order :
Amitendra Kishore Prasad, J.
1. The applicant has preferred the present revision petition under Section 115 of the Code of Civil Procedure, feeling aggrieved by the order dated 05.04.2024 passed in Civil Suit No. 27A/2016 by the Second Civil Judge, Class – I, Bastar at Jagdalpur, (C.G.) whereby the plaintiff/non-applicant No.1 filed a suit for declaration of title, possession, and injunction. The defendants/applicants moved an application under Order VII Rule 11 CPC, contending that an earlier suit (C.S. No. 2A/2013) on the same cause of action was dismissed for want of prosecution, thereby attracting the bar under Order IX Rule 9 CPC. The trial Court, vide order dated 05.04.2024 in Civil Suit No. 27A/2016, rejected the application holding that the issue involved mixed questions of law and fact. The Trial Court erred in not considering that the earlier suit was dismissed without liberty to file afresh, rendering the present suit not maintainable. Being aggrieved, the applicants have preferred this revision.
2. Facts of the case, as canvased by the applicant, are that the plaintiff/non-applicant No.1 instituted a civil suit seeking declaration of title and permanent injunction
Dismissal of suit for default does not bar a fresh suit on distinct grounds; res judicata applies only when parties and cause of action are the same.
The bar under Order IX, Rule 9 applies only to dismissals under Rule 8 of the Civil Procedure Code; if dismissed under Rule 3, a fresh suit may be filed.
An application for plaint rejection under Order 7 Rule 11 CPC only evaluates the plaint's contents without considering the defendant's defense. Res judicata principles need comprehensive analysis bey....
Only the original plaintiff is precluded from filing a fresh suit after dismissal in default; those claiming under the plaintiff are not affected. Genuine circumstances justified withdrawal from the ....
The right to seek partition is a recurring cause of action, and a fresh suit is not barred by the dismissal of a previous suit for non-prosecution under CPC.
Power conferred on Courts under Rule 3 of Order 17 of CPC to decide suit on merits for default of a party is a drastic power which seriously restricts remedy of unsuccessful party for redress.
A second suit for declaration and permanent injunction is maintainable if it presents a different cause of action, even if a previous partition suit was dismissed for default.
Bar under Order IX Rule 9 of the Code does not apply in a suit for partition, since the right to enforce partition is a legal incident of a joint tenancy, and as long as such tenancy subsists, any of....
(1) It is plaint averment that is required to be primarily considered at stage of considering application under Order VII Rule 11(d) of CPC.(2) Plea with respect to Order II Rule 2 of CPC has to be e....
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