Crux:
The High Court erred in law holding that the subsequent suit was based on a different cause of action and the Supreme Court set aside the judgement.

Bench:
Justice Arun Mishra, Justice M.R Shah

Petitioner:
Mayandi, Abhinav Ramkrishna, Aor

Respondent:
Pandarachamy & Anr., Parijat Kishore, Aor

Issue

Can a suit be filed again on the same cause of action once it is dismissed under Order IX, Rule 8 of the Civil Procedure Code presenting it to be maintainable?

Facts

• A will was filed in 1996 and was dismissed in 2001 when the counsel for the plaintiff was absent and the counsel for the defendant was present in the Court.
• Plaintiff No. 2, 3 and 4 filed the second suit against the defendants and prayed for a permanent injunction on the basis of the will only. After the suit was filed, Respondent No. 1 purchased the property from the original plaintiffs.
• The High Court decreed the suit of the plaintiffs by the impugned judgement and decree and allowed the second suit stating the cause of action to be different in the two suits.

Plaintiffs Contentions

• The former suit was filed in order to declare their rights which were dismissed for non-prosecution.
• The plaintiff was a mortgagee and the property had been purchased in the discharge of the debt and thus, the cause of action to maintain the present suit was just a mortgage deed.

The relevant paragraph from the original judgement (paragraph 3 and 4)

• Civil Suit No. 85/1996 was initiated on the basis of the Will. When the Plaintiffs' counsel was missing and the Defendants' counsel was present in court, the case was dismissed by order dated 16.03.2001.
• Plaintiffs Nos. 2, 3, and 4 filed a second lawsuit against the defendants, Suit No. 1106/2004. The prayer was for a permanent injunction based solely on the Will. Respondent No. 1 purchased the property from the original Plaintiffs after the litigation was filed.

Judgement

After hearing both the parties, it was apparent that the earlier suit was dismissed under the provisions of Order IX, Rule 8 of the Civil Procedure Code as the counsel for the plaintiff was not present and the one for the defendant was present, and thus fresh suit for the same cause of action was barred. However, a request to set aside the dismissal could be sought. The Supreme Court set aside the judgement of the High Court. The Bench held that it erred in law holding that the subsequent suit was based on a different cause of action, as such it was maintainable. It also held that the impugned judgement and order was patently illegal. The purchaser cannot be said to be having better rights than the original plaintiff. The appeal was allowed accordingly.

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