Amruddin Ansari (D) vs Afajal Ali 2025 INSC 566 -CPC - Fresh Suit After Dismissal For Default

Code of Civil Procedure 1908- Order IX Rule 4 -Whether after the dismissal of the petition for restoration of suit under Order IX Rule 4 of the C.P.C. a fresh suit is maintainable? A fresh suit is maintainable even after the rejection of the application filed under Order IX Rule 4 of the C.P.C- In case of dismissal of suit under Order IX Rule 4 of the C.P.C. the plaintiff has both the remedies of filing of fresh suit or application for restoration of the suit. If he chooses one remedy, he is not debarred from availing himself of the other remedy. Both these remedies are simultaneous and would not exclude either of them. (Para 21)

Code of Civil Procedure 1908- Order IX Rule 2,3-Whether after dismissal of the suit for default, a fresh suit is barred by res judicata? If a fresh suit is filed, then such an order of dismissal cannot and shall not operate a res judicata. (Para 26)

Code of Civil Procedure 1908- Order IX Rule 2,3,4,8- where the suit is dismissed under Rule 2 or Rule 3 of Order IX, the remedy provided is under Rule 4 of Order IX of the C.P.C. In case of such dismissal, the plaintiff either brings a fresh suit on the same cause of action or he may apply for setting aside the order of dismissal and for restoration of suit. Whereas if the suit is dismissed under Rule 8 of Order IX of the C.P.C., the plaintiff cannot bring a fresh suit on the same cause of action. The only remedy available to the plaintiff is to move an application for setting aside the order of dismissal and for restoration of suit. (Para 16)

Code of Civil Procedure 1908- Order IX Rule 2,3- An order of dismissal of a suit or application in default under Rule 2 or Rule 3 of Order IX of the C.P.C. is neither an adjudication or a decree nor it is an appealable order. If that is so, such order of dismissal of a suit under Rule 2 or Rule 3 of Order IX of the C.P.C. does not fulfill the requirement of the term “judgment” or “decree”, inasmuch as there is no adjudication. (Para 26)

Res Judicata - The principle of res judicata is based on the common law maxim “nemo debet bis vexari pro una et eadem causa”, which means that no man shall be vexed twice over the same cause of action. It is a doctrine applied to give finality to a lis. According to this doctrine, an issue or a point once decided and attends finality, should not be allowed to be reopened and re-agitated in a subsequent suit. In other words, if an issue involved in a suit is finally adjudicated by a Court of competent jurisdiction, the same issue in a subsequent suit cannot be allowed to be re-agitated. It is, therefore, clear that for the application of principle of res judicata, there must be an adjudication of an issue in a suit by a court of competent jurisdiction. (Para 23)

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