The bar under Order IX, Rule 9 applies only to dismissals under Rule 8 of the Civil Procedure Code; if dismissed under Rule 3, a fresh suit may be filed.

1. The present appeal has been filed by the original plaintiff, whose suit has been held to be barred by the provisions of Order IX , R.9. Civil Procedure Code.

2. The present plaintiff filed a suit for declaration on the basis of a title and seeking possession of field Survey No. 217/2, situated at Mouza Yeoli, district Amravati. She alleged that defendant No. 1 one Sadasheo, had practised fraud on her and made her sign a general power of attorney in his own favour which included power to transfer her property too. Accordingly, power of attorney was got executed from her on December 15, 1959. She further alleged that acting under the said fraudulent power of attorney, defendant No. 1 purported to execute a sale deed on January 12, 1960 in favour of defendant No. 2, one Bhaskar Bobde. It is her case that these two defendants further purported to lease the suit field to defendant No. 3, who was real brother of defendant No. 1, under an alleged registered lease deed of July 19, 1960. She asserted, therefore, that her title was never lost and the defendant No. 3 was not the lessee of the field but was in unauthorised occupation thereof. Amongst other things, she claimed declaration as to her title and also a decree against defendant No. 3 for possession with consequential reliefs of mesne profits, to the claim in suit, all the defendants raised different pleadings including the plea that the present suit was barred under Order IX , R.9, Civil Procedure Code, because of the earlier suit of the plaintiff based on the same cause of action being Regular Civil Suit No. 365 of 1961 having been dismissed on 7-3-1967. There were other issues including the issue of tenancy.

3. The first Court found in favour of the plaintiff holding that the earlier dismissal of the suit did not enure for the benefit of defendant No. 3. Accordingly, declaration was granted so also a decree for possession was made against defendant No. 3.

4. When the matter went before the appellate Court at the instance of defendant No. 3, the only issue that was agitated, as can be seen from the judgment under appeal, is the bar set up because of the provisions of Order IX , R.9, to the tenability of the suit filed by the present plaintiff. The learned appellate Court found that the cause of action in the previous suit, i.e. Civil Suit No. 385/61 and the present suit, was the same. He further found that the dismissal of that suit on 7-3-1967 operated as total bar against the plaintiff in maintaining the present suit. In that view of the matter, the learned Judge allowed the appeal and dismissed the suit.

5. It is not in dispute that the earlier suit i.e. Civil Suit No. 385/61, was dismissed on 7-3-67 by the following order: -
"The plaintiff absent today in spite of the fact that the suit is fixed for hearing. The counsel is also absent. Suit is dismissed. Defendant No. 1 alone present. Plaintiff to pay costs of defendant No. 1 only."
It is not in dispute that to that earlier suit present defendant No. 2 and defendant No. 3 were also defendant - parties respectively. It cannot be disputed that on the date when the dismissal of that suit occurred, neither defendant No. 2 nor defendant No. 3 was present. Thus as a fact the suit was dismissed in the presence of defendant No. 1 and in the absence of defendants - Nos. 2 and 3 who were arrayed in the same manner as in the present suit.

6. The learned Judge has found upon the cause of action that the present suit and the earlier suit is based on the same and identical cause of action. That reasoning has been reached after quoting the paragraphs f