The main legal point established in the judgment is that a fresh suit is barred if the earlier suit is dismissed in default under Order 9 Rule 8 CPC, and the second suit is also barred on the same subject matter under Order 23 Rule 1(4) CPC.

JUDGMENT

Raj Mohan Singh, J. - Present revision petition has been preferred by the petitioner against the order dated 19.05.2017 passed by Civil Judge (Junior Division), Patiala, whereby the application filed by the petitioner under Order 7, Rule 11 CPC for rejection of plaint was dismissed.

2. Perusal of the record would show that earlier a suit for mandatory injunction was filed by the plaintiffs. Trial Court decreed the suit vide judgment and decree dated 16.07.2018, however, the Lower Appellate Court vide judgment and decree dated 04.04.2011 remanded the case to the trial Court for fresh decision. Thereafter, the plaintiffs did not appear before the trial Court and the suit was dismissed under Order 9, Rule 8 CPC.

3. The second suit was filed on the basis of alleged change of cause of action on 18.03.2015. In the second suit, defendant/petitioner filed an application under Order 7, Rule 11 CPC for rejection of plaint.

4. Trial Court dismissed the application and that is how, the present revision petition came to be filed.

5. Learned counsel for the petitioner submitted that fresh suit is barred under Order 9, Rule 8 CPC and under Order 23, Rule 1(4) CPC.

6. On the other hand, learned counsel for the plaintiffs/respondents submitted that in terms of para Nos.6, 9, 13 and 14 of the plaint, cause of action for filing the second suit is on different parameters, though the parties in both the suits are same. Learned counsel submitted that the plaint has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. Learned counsel referred to P.V. Guru Raj Reddy Rep. by GPA Laxmi Narayan Reddy and another v. P. Neeradha Reddy and others, 2015 (2) RCR (Civil) 43.

7. I have heard learned counsel for the parties.

8. Perusal of para No.6 of the plaint would show that factum of filing the earlier suit was pleaded only upto the stage of the decree passed by the trial Court on 16.07.2008 vide which defendants were directed to vacate the house within a period of two months. The filing of the appeal before the Lower Appellate Court, the order of remand passed by the Lower Appellate Court and thereafter, dismissal of the suit by the trial Court in default under Order 9, Rule 8 CPC were not pleaded by the plaintiffs in the plaint. Para No.9 of the plaint would show that when the defendants failed to vacate the portion of the house, the licence to occupy the same was cancelled and they were requested to vacate the portion within a period of 7 days through legal notice dated 18.03.2015. Failure on the part of the defendants to vacate the house, to hand over the possession to the plaintiffs and by not filing the reply to the legal notice, entailed in filing the fresh suit by the plaintiffs. In para No.13 of the plaint, the plaintiffs have mentioned that no such or similar suit was filed earlier except the suit decided by the trial Court. The pleadings of para No.14 are in respect of cause of action, which was based on termination of licence and issuance of legal notice to the defendants to vacate the premises.

9. Evidently, the suit property in both the suits is the same. The second suit has been filed only after changing the nomenclature of the suit to the extent of terminating the licence of the defendants and thereafter, a legal notice dated 18.03.2015 was issued. The pleadings to the said extent are clever some pleadings just to create some unfounded illusion regarding cause of action in order to escape from the rigour of Order 9, Rule 9 CPC and Order 23, Rule 1(4) CPC.

10. It is a settled principle of law that if a suit is dismissed in default under Order 9, Rule 8 CPC, then fresh suit is barred in terms of Order 9, Rule 9 CPC. The second suit is barred on the same subject matter even as per Order 23, Rule 1(4) CPC. The pleadings in terms of para Nos.6, 9, 13 and 14 would not provide any escape route to the plaintiffs to claim different cause of action in respect of same house, same