Dual Remedies Under Order IX Rule 4 CPC Affirmed: Fresh Suit Possible Even After Failed Restoration

Introduction

Amruddin Ansari (Dead) through Legal Representatives v. Afajal Ali & Ors. (2025 INSC 566) is a landmark pronouncement of the Supreme Court of India delivered on 22 April 2025. It settles a long-standing ambiguity concerning the interplay of Order IX Rule 4 of the Code of Civil Procedure, 1908 (“CPC”) with the doctrine of res judicata and the maintainability of a second suit when an earlier suit has been dismissed for default and an application for restoration has failed.

The litigation arose from competing claims to certain immovable property in Ramanujganj, Chhattisgarh. The father of the present plaintiffs had filed the original suit seeking declaration of title, cancellation of a sale deed and injunction. That suit was dismissed under Order IX Rule 2. His application for restoration under Order IX Rule 4 also failed and attained finality. Subsequently, his legal heirs (the present plaintiffs) instituted a fresh suit seeking identical reliefs. The trial court decreed the claim, the first appellate court reversed it, and the High Court—invoking Order IX Rule 4—restored the trial court’s decree. The defendants approached the Supreme Court by Special Leave Petition raising three core questions:

1. Whether a fresh suit is maintainable after dismissal of the first suit and rejection of restoration under Order IX Rule 4.
2. Whether the second suit is barred by res judicata.
3. Whether an unregistered document titled “Wajib Dawa” (Exhibit P-1) could be relied on to prove title.

Summary of the Judgment

• The Court, speaking through Pardiwala J., dismissed the petition and upheld the High Court’s view.
• It held that Order IX Rule 4 confers cumulative, not alternative, remedies: a plaintiff may first seek restoration and, if unsuccessful, still institute a fresh suit (subject to limitation).
• Dismissal of a suit under Order IX Rule 2 or 3 is not an “adjudication” on the merits; hence res judicata does not apply.
• The Court approved the evidentiary use of the “Wajib Dawa” document, rejecting objections under Section 54 of Mohammedan Law and Section 6(a) of the Transfer of Property Act.

Detailed Analysis

1. Precedents Cited and Their Influence

1. Bhudeo v. Musammat Baikunthi (Privy Council 1921, 63 I.C. 239)
   • Foundational precedent interpreting Order IX Rule 4.
   • Held that the remedies of (a) moving for restoration and (b) filing a fresh suit are “not mutually exclusive.”
   • The Supreme Court expressly “respectfully agreed” with this reading.
2. Govind Prasad v. Har Kishen (AIR 1929 All 131)
   • Allahabad High Court allowed a second suit after dismissal under Order IX Rule 3 and failure of restoration.
   • Cited to reinforce that Rule 4 does not bar a fresh action.
3. Mt. Balkesia v. Mahant Bhagwan Gir (AIR 1937 Pat 9)
   • Patna High Court ruled that the options under Rule 4 are simultaneous and non-exclusive.
   • The judgment furnished extended reasoning echoed by the Supreme Court.

2. The Court’s Legal Reasoning

a) Statutory Comparison: The bench compared Rules 2-4 with Rules 8-9 of Order IX.

• Rule 4 (after dismissal under Rules 2 or 3) expressly allows a fresh suit “subject to limitation.”
• Rule 9 (after dismissal under Rule 8) contains an explicit bar (“the plaintiff shall be precluded from bringing a fresh suit”).

The presence of a clear bar in Rule 9 and its absence in Rule 4 led to the textual inference that no prohibition exists under Rule 4.

b) Res Judicata Analysis:

• For res judicata to apply, there must be a prior “judgment” or “decree” (Sections 2(9) & 2(2) CPC) embodying an adjudication of rights.
• Dismissal of a suit for default under Order IX Rules 2 or 3 is an administrative order; it does not decide any issue on merits and is not appealable under Order XLIII.
• Consequently, such dismissal cannot operate as res judicata in a subsequent suit.

c) “Wajib Dawa” Document:

• The Court upheld the High Court’s factual appreciation that the document, though unregistered, could still be read as evidence of historical possession and relinquishment, especially when its authenticity was not disputed by the defendants.
• Section 54 of Mohammedan Law and Section 6(a) TPA were found inapplicable to the specific nature of the relinquishment recorded.

3. Impact on Future Litigation and Jurisprudence

• Clarifies that litigants are not irretrievably prejudiced by an adverse order refusing restoration; they can still sue again, reducing inadvertent procedural harshness.
• Creates a binding Supreme Court precedent harmonising divergent High Court views (e.g., occasional contra-observations treating the remedies as alternative).
• Strengthens textual/statutory interpretation that courts must give meaning to the Legislature’s deliberate omission or inclusion of words (“shall be precluded” appearing only in Rule 9).
• May lead to a rise in fresh suits where restoration fails; concurrently, trial courts may exercise greater caution before dismissing suits for procedural defaults.
• Reinforces the distinction between dismissal for default and dismissal on merits when applying res judicata.

Complex Concepts Simplified

Order IX CPC

Governs what happens when parties do not appear at various stages of a civil suit.

Rules 2 & 3 vs. Rules 8 & 9

• Rules 2 & 3: Suit dismissed for plaintiff’s procedural default before issues are framed. • Rule 8: Suit dismissed when defendant appears but plaintiff does not at hearing. • Rule 4: Offers plaintiff two choices after dismissal under Rules 2 or 3—(a) move to restore, or (b) file a fresh suit. • Rule 9: Categorical bar on fresh suit after dismissal under Rule 8; only restoration possible.

Res Judicata

Legal bar preventing the same dispute being litigated again once finally decided on merits by a competent court.

“Wajib Dawa”

A historical revenue/settlement record noting customary rights; often relied upon as circumstantial evidence of title or possession.

Conclusion

The Supreme Court’s decision in Amruddin Ansari v. Afajal Ali firmly establishes that:

1. Order IX Rule 4 CPC confers cumulative, not exclusive, remedies; filing for restoration does not waive the right to a fresh suit.
2. Dismissal under Rules 2 or 3 for default is not a judgment on merits and therefore cannot trigger res judicata.
3. Unregistered historical documents may still be admissible to prove title or possession, depending on context and absence of dispute.

By eliminating lingering uncertainty, the judgment enhances procedural fairness and predictability, reminding courts and practitioners alike that statutory text and legislative intent must guide interpretation. Litigants whose suits have been dismissed for pre-service defaults now have clear authority to re-approach the court through a fresh plaint, subject only to limitation, thereby balancing diligence with access to justice.