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.

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 in respect of certain immovable properties situated at Jagdalpur, Village Bade Marenga, Village Palli, and Village Chhote Devda, which were originally owned by late Govind Rath. It was the specific case of the plaintiff that he, along with the defendants, are the legal heirs of late Govind Rath, who passed away on 07.05.1976, leaving behind the aforementioned properties. After his demise, both parties continued to enjoy the usufruct and benefits arising from the said properties jointly. Subsequently, defendant No.7 / applicant No.2 instituted a separate civil suit bearing Civil Suit No. 3A/2013 before the competent Court at Jagdalpur, seeking declaration of title, possession, and permanent injunction against the present plaintiff and defendant No.1 / applicant No.1. During the pendency of that suit, on 20.12.2013, a compromise application was filed between the parties, and the matter was amicably settled in respect of the suit properties situated in Village Palli and Village Bade Marenga. The said suit was accordingly disposed of in terms of the compromise. Thereafter, the present plaintiff, along with defendant No.1 / petitioner No.1, filed another suit bearing Civil Suit No. 2A/2013 for declaration of title and for setting aside the order dated 23.02.1999 passed by the Assistant Superintendent of Land Records, Jagdalpur. However, during the pendency of that suit, defendant No.1, acting in collusion with defendants No.2 to 7, failed to pursue the matter diligently. In view of the earlier compromise entered into in Civil Suit No.3A/2013, it was agreed that Civil Suit No.2A/2013 would also be withdrawn. Consequently, due to the non-appearance of the plaintiff on 15.01.2014, Civil Suit No.2A/2013 was dismissed for want of prosecution. As the defendants failed to honour the terms of the compromise arrived at in Civil Suit No.3A/2013 and further started raising construction and creating third-party rights over the suit properties, the plaintiff was constrained to file the present suit (Civil Suit No.27A/2016) seeking appropriate reliefs.

3. On 28.01.2020, the defendants/applicants filed an application under Order VII Rule 11 CPC read with Order IX Rule 9 CPC, contending that since the earlier suit (Civil Suit No.2A/2013) involving the same parties, subject matter, and cause of action had already been dismissed for want of prosecution, the present suit was barred under Order IX Rule 9 CPC and, therefore, not maintainable. The plaintiff filed his reply on 01.02.2020, denying the averments and asserting that Civil Suit No.2A/2013 had not been dismissed for want of prosecution. It was further pleaded that a similar application had earlier been filed by the defendants on 17.08.2016, which was allowed by the Trial Court on 12.10.2017. Against that order, the pl