LexAMRUDDIN ANSARI (DEAD) THROUGH LRS. & ORS. versus AFAJAL ALI & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2025] 4 S.C.R. 2650 : 2025 INSC 566 Amruddin Ansari (Dead) Through Lrs. & Ors. v. Afajal Ali & Ors. (Special Leave to Appeal (C) No. 11442 of 2023) 22 April 2025 [J.B. Pardiwala* and R. Mahadevan, JJ.] Issue for Consideration i) Whether after the dismissal of the petition for restoration of suit u/Or. IX R.4 of the CPC a fresh suit is maintainable; ii) Whether after dismissal of suit in default u/R.2 and R.3 of Or. IX of the CPC, a fresh suit is barred by the principle of res judicata. Headnotes† Code of Civil Procedure, 1908 – Or.IX, R.4 – Whether after the dismissal of the petition for restoration of suit u/Or. IX R.4 of the CPC a fresh suit is maintainable: Held: From bare reading of the two provisions i.e. R.4 and R.9 of Or. IX of the CPC, it is manifestly clear that u/R. 4 of Or. IX of the CPC, the legislature in express term has not precluded the plaintiff from filing a fresh suit on the same cause of action in the event suit is dismissed under R.2 or R.3 of Or. IX of the CPC, whereas R.9 of Or. IX debars the plaintiff from filing a fresh suit in a case where the suit is dismissed under R.8 of Or. IX of the CPC – The only remedy provided for such dismissal is to file an application u/R.9 of Or. IX of the CPC for restoration of suit – In case of dismissal of suit u/Or. IX R.4 of the CPC 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. [Paras 17, 21] Code of Civil Procedure, 1908 – Whether after dismissal of suit in default u/R.2 and R.3 of Or. IX of the CPC, a fresh suit is barred by the principle of res judicata: Held: 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 * Author [2025] 4 S.C.R. 2651 Amruddin Ansari (Dead) Through Lrs. & Ors. v. Afajal Ali & Ors. 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 – A dismissal of a suit or application for default particularly u/R.2 or R.3 of Or. IX of the CPC is not the formal expression of an adjudication upon any right claimed or the defence set up in a suit – An order of dismissal of a suit or application in default is also not appealable order as provided u/Or. XLIII of the CPC – If Or. XLIII CPC is read, one will find that orders passed u/Or. IX, R.9 of the CPC or Or. IX R.13 of the CPC are made appealable, but order passed u/Or. IX R.4 of the CPC is not appealable – It is, therefore, clear that an order of dismissal of a suit or application in default u/R.2 or R.3 of Or.IX of the CPC is neither an adjudication or a decree nor it is an appealable order – If that is so, such order of dismissal of a suit u/R.2 or R.3 of Or. IX of the CPC does not fulfill the requirement of the term “judgment” or “decree”, inasmuch as there is no adjudication – In considered opinion of this Court, therefore, if a fresh suit is filed, then such an order of dismissal cannot and shall not operate a res judicata. [Paras 23, 26] Case Law Cited Bhudeo vs. Musammat Baikunthi (1921) 63 I.C. 239; Govind Prasad v. Har Kishen, AIR 1929 Allahabad 131; Mt. Balkesia v. Mahant Bhagwan Gir, AIR 1937 Patna 9 – referred to. List of Acts Code of Civil Procedure, 1908. List of Keywords Or.IX, R.4 of Code of Civil Procedure, 1908; Dismissal of suit in default; Dismissal of suit in default u/R.2 and R.3 of Or. IX of the CPC; Fresh suit; Principle of res judicata; Application for restoration of suit. Case Arising From EXTRA-ORDINARY APPELLATE JURISDICTION: Special Leave Petition (Civil) No. 11442 of 2023 From the Judgment and Order dated 24.10.2019 of the High Court of Chhattisgarh at Bilaspur in SA No. 424 of 2005 2652 [2025] 4 S.C.R. Supreme Court Reports Appearances for Parties Advs. for the Petitioners: Vinay P. Tripathi, B. Shravanth Shanker, Abhinav Jaganathan, B. Yeshwanth Raj, Mrs. Preeti Shukla. Advs. for the Respondents: Ms. V. Mohana, Kaustubh Shukla, Ms. Praveen Kumar Singh, Ms. Pushpanjali Singh, Ms. Bhavya Pande Judgment / Order of the Supreme Court Order J.B. Pardiwala, J. 1. This petition arises from the judgment and ord
Excerpt shown. Read the full judgment & AI analysis in Lexace.