A second suit on the same cause of action is not maintainable if the first suit was dismissed for default.

Kapur, J.

1. This is a plaintiffs appeal against a judgment and decree of Mr. Ghulam Rabbani, Senior Subordinate Judge, Ambala, dismissing the plaintiffs suit with costs.

2. In order to understand the case a reference may be made to the pedigree-table which is as follows:

KALLU MAL

_________________|___________________

| |

Jagan Nath Pars Ram

| |

Munna Lal Sunder Lal

__________|_________ |

| | Raj Kumar

Ram Kishan Jai Kishan (plaintiff 1.)

(plaintiff 2) (plaintiff 3)

3 Munna Lal the father of plaintiffs Nos. 2 and 3, who is an Aggarwal Bania of Jagadhri mortgaged the land in suit for Rs. 7,000/- to Mutsaddi Lal defendant No. 1. On the 18th October 1938 Munna Lal sold the property to Mansa Ram and others for Rs. 13,000/-, out of which Rs. 7,000/- were paid by the vendees to the previous mortgagee.

4. On the 29th January 1944 the present plaintiffs through one Raghbir Saran filed a suit against the present defendants for a declaration that the mortgage deed and the sale-deed executed by Munna Lal would be null and void as against the rights of the plaintiffs and that they are the owners and possessors of the land in dispute. On the 19th April 1944 a number of issues were framed and the suit was adjourned to the 6th May 1944 for the filing of the list of witnesses etc. The case was ultimately adjourned to the 21st August 1944, but as no evidence for the plaintiffs was present the case was fixed for the 23rd and 24th October 1944. Again on the 23rd October 1944 the plaintiffs evidence was not present, nor had they summoned any. The plaintiffs made an application for permission to bring a fresh suit but this was rejected by the learned Senior Subordinate Judge on the 10th November 1944 and the case was then fixed for the evidence of the plaintiffs for the 23rd November 1944. On that date the plaintiffs pleader appeared and stated that he had no further instructions and the Court therefore dismissed the suit under Order 9, Rule 8 read with Order XVII, Rule 2 of the Civil P. C.

5. On the 2Ist November 1944 another suit was brought by the plaintiffs through another next friend Jadu Rai son of Maqsudan Das. An objection was taken by the defendants that the suit was barred on various grounds and an issue was framed:

"Is the present suit legally maintainable?"

The learned Judge decided against the defendants and held that the suit was maintainable, and was not barred under Order IX, Rule 9 of the Civil P. C. or on the principle of res judicata.

6. The suit was then tried on merits and ultimately the suit was dismissed on the ground that the special custom set up by the plaintiffs had not been proved and that as plaintiffs Nos. 2 and 3, who are the sons of Munna Lal, were not born when the alienations took place they could not bring the present suit under Hindu Law. The plaintiffs have filed an appeal to this Court.

7. We decided to hear in the first instance the objection of the defendants, now respondents, that the suit is not maintainable. For the respondents reliance was placed on a Single Bench judgment of this Court HARNAM SINGH V/s. BAKHSHISH SINGH, 53 Pun L R 313, where it was held:

"Where a man had brought a suit for being declared as the legally adopted son of his adoptive father on the ground of adoption by the widow of the father cannot be allowed to withdraw that suit after the stage of evidence has come and try to proceed with another suit which he had brought with slight variations in his allegations, one of them being that he was adopted by the adoptive father and not by the widow. The second suit brought during the pendency of the first suit was a gross abuse of the process of the Court and was not maintainable."

8. Mr. Shamair Ch