Honble, DIXIT, M.— This is a second appeal against the order of the learned Revenue Appellate Authority in which Appeal No. 90/99 which was passed in the appeal titled Shail Bhargava vs. Brijrani in a matter of rejecting a civil suit 181/93 as barred by law. The matter came up for admission. With the consent of both the parties, the matter is being heard finally and a decision on merits is being given.

2. The brief facts of the case are that the late husband of the appellant, Prem Mohan Bhargava had instituted a suit 181/93 under Sections 88 and 188 of the Rajasthan Tenancy Act which was held as barred on account of the fact that the same Prem Mohan Bhargava had instituted a previous suit 71/81 under Sections 88 and 183 against the defendants who are broadly the same as in the 1993 suit and in respect of the same land and a cause of action which is the subject matter of adjudication here and the suit 71/81 was dismissed under Order 9 Rule 8 of the CPC in default and the order remained final. A subsequent suit 181/93, the Courts have seemingly held (1) to have been barred on account of the operation of Order 9 Rule 9 of the C.P.C.

3. The exclamation mark has been put by this Court because that only an inference can be drawn with regard to the bar being under Order 9 Rule 9 as both the Courts below have not expressly held it to be so under the said provision. In fact, the impugned order is a classic case of error apparent on the face of record as the issue that has been decided pertains to Order 9 Rule 8. The very issue that has been framed is interesting. The issue reads as follows:

``Whether the previous suit 71/81 (1/81) Prem Mohan vs. Niranjan Lal was based on the same cause of action which was dismissed in default on account of non-presence and non-prosecution and the decision therein was final. Therefore, the present suit is barred by Order 9 Rule 8 and Order 2 Rule 2.

4. Now, Order 9 Rule 8 reads as under:

Procedure where defendant only appears.- Where are defendant appears and the plaintiff does not appear which the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismissthe suit so far as it relates to the remainder.

The bare reading of the provision discloses no bar. However, we can only presume that the Court meant Order 9 Rule 9, which reads as under:

Decree against plaintiff by default bars fresh suit - (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

5. We can only presume that this is the only meaning that can be adduced to the impugned order which otherwise would result in a manifest absurdity. The bar contained in Order 9 Rule 9 is in respect of the same cause of action. A cause of action is a bundle of facts, which is deduced after reading the integral facts in the entire plaint. However, it would be beneficial to look at the record of submissions of the two sides first.

6. The counsel for the petitioner submits that the first suit was instituted by the husband and the father of the appellants, Prem Mohan Bhargava, against his mother Jaya Devi and Kamla Bhargava, Pushpa Bhargava and Vijay Bhargava on account of the fact that he was not being accepted as the only Khatedar of the land under dispute; whereas the pre

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