The dismissal of a suit under Order 9 Rule 8 CPC bars a fresh suit under Order 9 Rule 9 CPC for the same cause of action, and the principles of recurring cause of action do not apply to suits for permanent injunction to restrain the digging of a watercourse.

G.R.Majithia, J.

1. The plaintiff has come up in regular second appeal against the judgment and decree of the First Appellate Court affirming in appeal those of the trial Judge, whereby his suit for issuance of permanent injunction to restrain the defendant-respondent from digging any water course or from restoring any water-course or from digging a water-course through the land measuring 22 kanals-8 marlas, comprising in Khasra No. 100/18, 19 and 23 situated at Barnala, was dismissed.

2. The facts :-

The plaintiff- appellant (hereinafter, referred to as the plaintiff), filed a suit for perpetual injunction on the ground that there was no sanctioned water-course passing through the land in suit ; that the respondent-defendant (hereinafter, referred to as the defendant) wanted to dig a water-course through the land in suit forcibly with the unlawful help of Canal Authorities ; that in the previous suit, the defendant had taken a plea that the order dated October 13, 1972 of the Sub-Divisional Canal Officer was in his favour ; that he had got the watercourse restored pursuant to that order and the same had been demolished by the plaintiff that the suit was dismissed as withdrawn with permission to file a fresh suit; that, in fact no water-course existed in the land of the plaintiff ; that there was no order passed by the canal-authorities vide which a water-course had been sanctioned for the defendant through the land of the plaintiff and that the order, if any, was illegal.

3. The defendant contested the suit on the ground that a watercourse was in-existence for taking canal water through his fields and had been demolished by the plaintiff ; that the same had been restored under the orders of the canal authorities with the police help ; that the plaintiff again demolished the water course ; that the plaintiff brought a suit for injunction on August 12, 1975 and the same was dismissed under order 9 rule 8 of the Code of Civil Procedure (hereinafter, referred to as the Code) and as such, the instant suit is barred.

4. On the pleadings of the parties, the following issues were framed :-

1. Whether there is a sanctioned khal by the canal authorities through the suit land ? O. P. D.

2. Whether the suit is not maintainable as alleged ? O. P. D.

3. Whether this Court has no jurisdiction to try the suit ? O. P. D.

4. Whether order of restoration of Khal in dispute is without jurisdiction, null and void ? O. P. P.

5. Whether plaintiff is entitled to the injunction prayed for ? O. P. P.

6. Whether the suit is bad for non-joinder of necessary parties ? O. P. D.

7. Relief.

5. The trial Judge decided issue No. 1 against the defendant ; issue No. 2 was not pressed, resultantly, the same was also decided against the defendant. Under issue No. 3, it was held that the Civil Court had jurisdiction to entertain the suit issue No. 4 was decided in favour of the plaintiff and against the defendant and it was held that the order of restoration was without jurisdiction issue No. 5 was decided in favour of the plaintiff and it was held that he was entitled to the injunction prayed for and issue No. 6 was not pressed by the defendant and it was accordingly decided against the defendant. On the ultimate analysis, the suit was decreed.

6. The defendant assailed the judgment and decree of the trial Court in appeal.

7. The First Appellate Court framed an additional issue, which runs thus :-

"Whether the previous suit was dismissed under Order 9 Rule 8 C. P. C. and the present suit is barred ? O. P. D.".

8. It called for report under Order 41 Rule 25 of the Code. The trial Judge decided the additional issue in favour of the plaintiff and against the defendant.

9. The First Appellate Court on appeal reversed the decision of the trial Judge on the additional issue and held that the present suit was based on the same cause of action as the earlier one and the dismissal of the earlier suit under Order 9 Rule 8 of the Code barred the present suit. The Fi