Resjudicata
Suchitra. S
(Querist) 12 November 2010
This query is : Resolved
Respected experts, please let me know whether one can file a suit in another civil court of other city if the suit is dismissed in one civil court for default. Please provide citations if any.
s.subramanian
(Expert) 12 November 2010
No. It is barred under Order 9 of C.P.C. Such a suit has to be restored by resorting to Order 9 Rule 9 CPC.
Advocate. Arunagiri
(Expert) 12 November 2010
I agree with Mr.Subramanian. You can try to restore the case, which was dismissed for non prosecution.
R.Ramachandran
(Expert) 12 November 2010
Dear Suchitra,
It has been held in Ram Govinda v. Bhakta Bala AIR 1971 SC 664 (670) = (1971) 1 SCC 387 that a suit dismissed by the trial Court for default or want of juridiction does not operate as res judicata in subsequent suit.
One of the many essential elements to attract the principles of res judicata is that the matter must have been finally decided between the parties by a court of competent jurisdiction.
When a suit is dismissed for default, the matter cannot be said to have been finally decided between the parties.
Hence the principles of res judicata cannot be attract to the fact situation given by you.
Yes, depending upon whether the dismissal for default is due to non-appearance or want of jurisdiction - the party can ether seek restoration or file a fresh suit at the appropriate jurisdiction.
Suchitra. S
(Querist) 13 November 2010
Thanks for all the advises.
Sathyan A.R.
(Expert) 13 November 2010
The decision cited my Mr Ramchandran is apt on the issue.
The doctrine of resjudicata does not apply at the stage of initiation of suit it applies at the stage of trial.It does not preclude a court from passing interim order, such as, grant of injunction or say or appointment of receiver (Indian Bank V.Maharashtra State coop Marketing federation (AIR 1998 SC 1952) The suit can be filed in any court in India as clarified in section 10 of cpc ,the emphasize being courts in india
in my opinion looking in to object of section 10 if the case is dismissed not on merit and for default such as expartee tb and on other technical issues then in my opinon the principle of resuscitata does not apply.
Any way there is no bar in initiating the suit but the limitation applies only to the trial
Ramakrishnan.V
(Expert) 14 November 2010
Respected Learned Counsel S.Subramania, section 9 does not operate as a bar because the provision is as follows:-
9. Courts to try all civil suits unless barred.
The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
1[Explanation I].- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
2[Explanation ll].- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.].
As rightly pointed out by the Learned Counsel Ramacharan the concept of resjudicata does not operate if the suit is dismissed for defalut but in that judgment of the supreme court the discussion was of section 11 and not of Order II rule 2 of CPC. In that judgement the question that arose is only section 11 and it is as follows as per the decision.
"t will be seen from the above reasoning that in order to operate as res-judicata, the previous decision must have been given after the matter was heard and finally decided on merits. This Court has further held' that the High Court, in that case, when it dismissed the two appeals in' question, though on a preliminary ground of limitation or default in printing must be considered to have heard and finally decided on merits"
Far from supporting Mr.Mukherjee's contention that a decision given in default of appearance under any circumstance, operates as res-judicata, the above decision lays down clearly that a previous decision to operate as res-judicata must be one in a case heard and finally decided on merits."
But Order II Rule 2 may get attracted is my opinion and would anyone clarify me.
Ramakrishnan.V
Debasish Hota
(Expert) 19 November 2010
Agreed with MR.RAMCHANDRAN.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 12 November 2010
