This appeal is directed against the judgment and order dated 17.8.2007 passed by Motor Accident Claims Tribunal, Ranchi in Compensation Case No.95/2005, whereby he has dismissed the claim case as being not maintainable and is barred by the principle of res judicata.

2. The facts of the case lie in a narrow compass. The claimant-appellant earlier filed a compensation case being Compensation Case No. 205/96 for grant of compensation on account of death of the deceased in a motor vehicle accident. The said claim case was dismissed in default and thereafter the claimant filed an application for restoration of Compensation Case No.205/96, which was registered as Miscellaneous Case No.2/2002. In the said restoration application the claimant was required to remove certain defects but for non-compliance, the restoration application was also dismissed for default. The claimant-appellant, thereafter, filed a fresh application claiming compensation, which was registered as Compensation Case No. 95/2005. The said claim application was opposed by the respondents raising the preliminary objection with regard to maintainability of the compensation case No.95/2005.

3. The Claims Tribunal, after hearing the parties, allowed the preliminary objection and held that the subsequent compensation case is not maintainable and is barred by res judicata. The Tribunal although held that order 9 CPC shall be applicable relating to claim case but dismissed the Compensation Case No.205/96 for non-filing of Court free stamp. The Tribunal further noticed that the restoration application was filed under Order 9 Rule 4 CPC, which was dismissed for default. However, the Tribunal held that in the aforesaid premises a second claim case cannot be filed and the same is hit by the principle of res judicata.

4. We have heard Mr. Rajiv Anand, learned counsel appearing for the appellant and Mr. H.K. Singh, learned counsel appearing for the Insurance Company.

5. In the background of the facts of the case, the important questions that fall for consideration are: -

(I) Whether after the dismissal of the petition for restoration of suit under Order 9 Rule 4, C.P.C. a fresh suit is maintainable?

(II) Whether after dismissal of the suit for default, a fresh suit is barred by res judicata?

6. Before answering question No. (I), I would first like to discuss the procedures provided under Order 9 of the Code of Civil Procedure.

7. Order 9 of the Code of Civil Procedures deals with the procedure of appearance of parties and consequence of non-appearance. Rule 1 provides that on the day fixed in the summons for the appearance of the defendant, the parties shall be in attendance either in person or by their respective pleaders and the suit shall be heard. Rule 2 confers power to the Court to dismiss the suit if it is found, on the date so fixed, summons could not be served upon the defendant in consequence of the failure of the plaintiff to pay the Court-fee or postal charges. Rule 3 also confers power to the Court to dismiss the suit when on the date so fixed the case is called on for hearing, neither party appears. In the aforesaid two circumstances where the suit is dismissed either for not payment of Court-fee or postal charges by the plaintiff or because of non-appearance of both the parties when the suit is called on for hearing, the remedy has been provided under Rule 4 of Order 9 CPC.

8. The power to dismiss the suit has also been provided in Rule 8 of Order 9 CPC. As per Rule 8 of Order 9 CPC, the Court shall dismiss the suit when on the date fixed for hearing the suit is called out, the defendant appears, but the plaintiff does not appear, unless the defendant admits the claim. If the suit is dismissed under Rule 8, Order 9 CPC, the remedy provided after such dismissal is under Rule 9 of Order 9 CPC.

9. For better appreciation, Rules 4 and 9 of Order IX C.P.C. are quoted herein below:

Plaintiff may bring fresh suit or Court may restore suit to file. -Where a suit