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Ranjit Singh v. Gurnam Singh & Another .
Structured Summary of the Opinion
Factual and Procedural Background
Ranjit Singh (the petitioner) filed this revision petition against an order of the Civil Judge (Junior Division), Ludhiana dated 15.11.1997, which had dismissed an application filed by the petitioner. The underlying litigation arose from a suit filed by respondent-plaintiff Gurnam Singh for a declaration that he was the owner in possession of a specified house and for a permanent injunction restraining the petitioner and another from dispossessing or otherwise interfering with his possession.
The respondent-plaintiff had previously instituted an earlier suit for declaration and injunction seeking substantially the same relief. That earlier suit was listed for hearing on 10.05.1990; because the plaintiff was not present, the suit was dismissed under Order 9, Rule 8 of the Code of Civil Procedure (C.P.C.). In 1994 the respondent-plaintiff filed a fresh suit (with the same property and a similar declaration and injunction claim). In the later suit the respondent-plaintiff amended the plaint by adding paragraph 7A, which, according to the record, challenged a sale deed in favour of the petitioner.
The petitioner applied in the trial court to dismiss or strike the second suit as barred because the earlier suit had been dismissed under Order 9, Rule 8 C.P.C., invoking the bar in Order 9, Rule 9. The trial court dismissed the petitioner's application, reasoning that the amended plaint (paragraph 7A challenging the sale deed) changed the cause of action and that, in any event, the injunction claim constituted a continuous cause of action. The petitioner then filed the present revision petition challenging that order.
Legal Issues Presented
- Whether a plaintiff whose earlier suit was dismissed under Order 9, Rule 8 C.P.C. is precluded from bringing a fresh suit in respect of the same cause of action under Order 9, Rule 9 C.P.C.
- Whether the amendment to the plaint (addition of paragraph 7A challenging a sale deed in favour of the petitioner / a new purchaser) altered the cause of action such that the subsequent suit would not be barred by Order 9, Rule 9 C.P.C.
- Whether, and to what extent, a claim for injunction constitutes a continuous cause of action permitting a second suit despite an earlier dismissal under Order 9, Rule 8 C.P.C.
Arguments of the Parties
Petitioner's Arguments
- The petitioner argued that the earlier suit by the respondent-plaintiff had been dismissed under Order 9, Rule 8 C.P.C., and therefore the second suit dealing with the same cause of action was barred by Order 9, Rule 9 C.P.C.
- Implicitly, the petitioner maintained that the amendment to the plaint in the second suit did not create a new cause of action sufficient to avoid the bar of Order 9, Rule 9.
Respondent No. 2's Argument
- Respondent No. 2 contended that the second suit was not maintainable and asserted that he had already sold the property to the petitioner.
Respondent-Plaintiff's Position
- The respondent-plaintiff amended the plaint in the second suit by adding paragraph 7A, which challenged the sale deed in favour of the petitioner, and sought the same or similar reliefs of declaration and permanent injunction in the fresh suit.
- By amending the plaint, the respondent-plaintiff treated the second suit as raising facts and reliefs sufficiently different (in the trial court's view) from the earlier dismissed suit.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Behari Lal v. Mangat Ram Kohli, A.I.R. 1964 Allahabad 36 | When a suit is dismissed under Order 9, Rule 8 C.P.C. because the plaintiff was not present, a fresh suit on the same cause of action is barred under Order 9, Rule 9. | Used to demonstrate that dismissal under O.9 R.8 normally precludes a fresh suit on the same cause of action. |
| Mst. Joginder Pal Kaur & Anr. v. Gurdial Singh & Ors., 1986 P.L.J. 182 | Recognises that where a right is continuous (example given: partition context), a subsequent suit may be maintainable despite an earlier dismissal. | Relied upon to support the proposition that a continuous right (such as a recurring threat leading to injunction claims) can permit a second suit. |
| Gaya Municipality v. Ram Prasad Bhatt & Anr., (1967) 11 S.C.W.R. 823 | If the cause of action in the second suit is the same as that in the previous suit, the second suit is barred; a second suit on the same cause of action is not maintainable. | Cited to reinforce the principle that identity of cause of action bars re-litigation by way of a fresh suit. |
| Suraj Rattan Thirani & Ors. v. Azamabad Tea Co. Ltd. & Ors., A.I.R. 1965 S.C. 295 | Examined the scope of Order 9, Rules 8 and 9; held that mere transfer of property (a new purchaser) does not create a new cause of action permitting a fresh suit if the earlier suit was barred. | Described as the leading case; the court relied on it to hold that the coming in of a new purchaser does not, by itself, make out a new cause of action to evade the bar of O.9 R.9. |
| Mohammed Khalil Khan v. Mahbub Ali Khan, 75 Ind. App. 121; (A.I.R. 1949 P.C. 78) | Articulated the test for identity of cause of action: whether the causes of action in substance (not technically) are identical. | Adopted as the proper test for determining whether the cause of action in the subsequent suit is the same as that in the previous suit. |
Court's Reasoning and Analysis
The court began from the statutory scheme in Order 9, Rules 8 and 9 C.P.C., observing that where a suit has been dismissed under Order 9, Rule 8, the plaintiff is generally precluded from bringing a fresh suit in respect of the same cause of action (Order 9, Rule 9). The court noted the mandatory tenor of the provision and surveyed relevant authority on the scope of O.9 R.8 and R.9.
The court relied on Behari Lal to show the ordinary effect of a dismissal under O.9 R.8—bar to a subsequent suit on the same cause of action. It reviewed Suraj Rattan Thirani as the leading Supreme Court decision establishing that the arrival of a new purchaser does not by itself create a distinct cause of action; a transfer cannot enable the transferee to assert a cause of action that the transferor was precluded from litigating. The court also referred to Mohammed Khalil Khan for the proper test of identity of cause of action: whether the causes of action in the two suits are in substance (not merely technically) identical.
From these authorities the court drew two central analytical points:
- Where the earlier suit was dismissed under Order 9, Rule 8, a subsequent suit will be barred by Order 9, Rule 9 if it pertains to the same cause of action.
- There is an exception where the relief sought concerns a continuous cause of action (for example, recurring threats of dispossession giving rise to a fresh injunction claim), and in such cases the plaintiff may be permitted to seek relief in a later suit despite the earlier dismissal.
Applying these principles to the facts, the court found that the injunction claim in the second suit related to a continuous cause of action and therefore could proceed. In contrast, the declaration claim for ownership and possession spoke to the same underlying dispute and similar allegations as the earlier suit dismissed under O.9 R.8; the addition of a new purchaser (the petitioner) and the amended paragraph challenging the sale deed did not transform the matter into a new cause of action sufficient to avoid the statutory bar. Consequently, the court concluded that the declaration component was barred under O.9 R.9 while the injunction component could be entertained.
Holding and Implications
Core Ruling: The revision petition is partly allowed. The court directed that the suit may continue only with respect to the injunction prayed by the respondent-plaintiff (respondent No.1).
Implications and direct effects:
- The claim for a declaration of ownership and possession (challenging the sale deed and seeking a declaratory decree) is barred by Order 9, Rule 9 C.P.C. in view of the earlier dismissal under Order 9, Rule 8; that part of the second suit cannot proceed.
- The injunction claim, being regarded as founded on a continuous cause of action, is permitted to continue; the trial court's allowance to that extent was upheld by this revision.
- The opinion applies established authority (including the Supreme Court's decision in Suraj Rattan Thirani) and the test from Mohammed Khalil Khan; it addresses the particular consequences for the parties but does not purport to lay down a new legal principle beyond the application of those precedents.
This summary is prepared strictly from the content of the provided opinion. No additional facts, inferences or external materials have been introduced.
1. Ranjit Singh petitioner has filed the present revision petition directed against the order passed by the Civil Judge (Junior Division), Ludhiana, dated 15.11.1997. By virtue of the impugned order, learned trial Court had dismissed the application filed by the petitioner.
2. The relevant facts are that the respondent-plaintiff Gurnam Singh had filed a civil suit for declaration that he is the owner in possession of the house in the site plan and for permanent injunction restraining the petitioner and another from dispossessing or interfering in the possession of the respondent-plaintiff. The petitioner had filed an application that the previous suit filed by respondent-plaintiff Gurnam Singh had been dismissed under Order 9, Rule 8 of the Code of Civil Procedure (for short "the Code") and, therefore, the second suit on the same cause of action is barred, learned trial Court dismissed the application holding that after instituting the suit, respondent-plaintiff had amended the plaint and added paragraph 7A by virtue of which he has challenged the sale deed in favour of petitioner and, therefore, cause of action was stated to be different. The trial Court held that under Order 9, Rule 8 of the Code the suit was not barred. Aggrieved by the same, present revision petition has been filed.
3. To appreciate the question in controversy, it becomes necessary to see the nature of the suit earlier filed and the present suit. In this regard, there was no dispute at the bar.
4. Admittedly, respondent-plaintiff had earlier filed a civil suit for declaration and injunction and therein following relief was prayed.
"It is, therefore, prayed that a decree for declaration to the effect that the plaintiff is owner in possession of the house bearing Municipal No. B-XXII-731/1 shown red in the plan attached and bounded as under :-
East : Street, West : Arjun Singh, North : Street, South : Harbhajan Singh, situated in Mohalla Chet Nagar, Millerganj, Ludhiana; and permanent injunction restraining the defendant from interfering in the peaceful possession of the plaintiff and dispossessing him forcibly and illegally and further from alienating the same by way of sale, mortgage, gift, lease or in any other manner whatsoever the property fully detailed above be passed in favour of the plaintiff and against the defendant with costs. Any other relief, additional or alternative to which the plaintiff is found entitled to, in the circumstances of the case, may also be granted in favour of the plaintiff.
5. The said suit was contested and came up for hearing on 10.5.1990, whereupon when none was present on behalf of the present respondent, the same was dismissed under Order 9 Rule 8 of the Code. The learned Sub Judge passed the following order :-
"Present : None for the parties. Counsel for the defendant.
It is already 12.55 p.m. Hence, the suit is dismissed in default of appearance of the plaintiff under Order 9, Rule 8 C.P.C. File be consigned to the record room. Announced. Sd/- S.J.I.C. 10/5/90".
6. In the year 1994, respondent-plaintiff instituted a fresh suit for declaration and injunction against Surjit Singh respondent No. 2. The property was the same and he claimed similar relief which reads as under:-
"It is, therefore, prayed that the suit of the plaintiff for a declaration that the plaintiff is the owner in possession of House No. B. XXII-731/I (old) B. XXII-3461 (New) shown red in the site plan attached and bounded as follows:-
North:- House of Arjun Singh, South : Road, East : Street and West : Street situated in Chet Singh Nagar, Ludhiana;
And for a permanent injunction restraining the defendant, his servants, agents or assignee from dispossessing or interfering in the peaceful possession of the plaintiff over the said house or alienating the same, may kindly be decreed with costs against the defendant.
Any other or alternative relief to which the plaintiff be found entitled to, be also awarded to the plaintiff".
7. Respondent No. 2 submitted before the Court that second suit was not maintainable and that he has already sold the property to the petitioner. Respondent-plaintiff submitted an application and amended the plaint. He added a new paragraph 7A in the plaint and following relief was claimed:-
"It is, therefore, prayed that the suit of the plaintiff for a declaration that the plaintiff is the owner in possession of House No. B XXII-731/1 (Old) B. XXII-3461, (New) shown red in the site plan attached and bounded as follows:-
North:- House of Arjun Singh, South : Road, East : Street and West : Street situated in Chet Singh Nagar, Ludhiana;
And for a permanent injunction restraining the defendant, his servants, agents or assignee from dispossessing or interfering in the peaceful possession of the plaintiff over the said house or alienating the same, may kindly be decreed with costs against the defendant.
Any other or alternative relief to which the plaintiff be found entitled to, be also awarded to the plaintiff".
8. It is on the strength of these facts that it has been urged and vehemently argued by the petitioner's counsel that the second suit based on the same facts is barred and is not maintainable. Reference obviously is being made to Order 9 Rule 9 of the Code which is being reproduced below for the sake of facility.
" 9. Decree again plaintiff by default bars fresh suit- (1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party".
9. From the aforesaid it is clear that once a suit has been dismissed under Order 9 Rule 8 of the Code, then the plaintiff is debarred from bringing a fresh suit in respect of the same cause of action. The provisions are mandatory in nature. The scope of Order 9 Rule 8 of the Code has been considered a number of times by the different Courts. There is little controversy. In the case of Behari Lal v. Mangat Ram Kohli, A.I.R. 1964 Allahabad 36, when the plaintiff did not appear and the suit was dismissed under Order 9 Rule 8 of the Code, then it was held that the subsequent suit with respect to the same cause is barred and the Court in paragraph 5 of the judgment held as under :-
".......In the present case the earlier suit of the plaintiff was tried by a Civil Court on a plaint on which the Court-fee had been paid. The C.P.C. will apply in its entirety. It was dismissed under Order 9 Rule 8 because the plaintiff was not present on the date of hearing. Therefore, a fresh suit on the same cause of action was barred under Rule 9".
10. This Court in the case of Mst. Joginder Pal Kaur and Anr. v. Gurdial Singh and Ors., 1986 P.L.J. 182, was concerned with a case where a suit was filed for partition. It was held that even if earlier suit was dismissed, still once it is a continuous right a second suit could be filed. Supreme Court in the case of The Gaya Municipality v. Ram Prasad Bhatt and Anr., (1967)11 Supreme Court Weekly Reporter, 823, held that if the cause of action in the second suit is the same as that on which the previous suit was based, the second suit is barred. A second suit on the same cause of action is not maintainable.
11. The leading case on the subject is the decision of the Supreme Court in the case of Suraj Rattan Thirani and Ors. v. Azamabad Tea Co. Ltd. and Ors., A.I.R. 1965 S.C. 295. The scope of Order 9, Rule 8 and 9 has been considered. It was held that merely because the property had been transferred will not permit the party to claim that a new cause of action had arisen. The Supreme Court in paragraph 25 of the judgment held as under :-
"......We are not however impressed by the argument that the ban imposed by O.IX R.9 creates merely a personal bar or estoppel against the particular plaintiff suing on the same cause of action and leaves the matter at large for those claiming under him. Beyond the absence of O.IX, R.9 of the words referring to "to those claiming under the plaintiff there is nothing to warrant this argument. It has neither principle, nor logic to commend it. It is not easy to comprehend how A who had no right to bring a suit or rather who was debarred from bringing a suit for the recovery of property could effect a transfer of his right to that property and confer on the transferee a right which he was precluded by law from asserting." 12. Thereupon, following further findings were given in paragraph 29 and 30 of the judgment :-
"29. A cause of action is a bundle of facts on the basis of which relief is claimed. If in addition to the facts alleged in the first suit, further facts are alleged and relief sought on their basis also, and he explained the additional facts to be the allegations about possession and dispossession in October, 1934, then the position in law was that the entire complexion of the suit is changed with the result that the words of O.IX R.9 in respect of the same cause of action are not satisfied and the plaintiff is entitled to reagitate the entire cause of action in the second suit. In support of this submission, learned counsel invited our attention to certain observations in a few decisions to which we do not consider it necessary to refer as we do not see any substance in the argument.
"30. We consider that the test adopted by the judicial Committee for determining the identity of the cause of action in two suits in Mohammed Khalil Khan v. Mahbub Ali Khan, 75 Ind. App. 121; (A.I.R. 1949 P.C. 78) is sound and expresses correctly the proper interpretation of the provision. In that case Sir Madhavan Nair, after an exhaustive discussion of the meaning of the expression "same cause of action", which occurs in a similar context in para (1) O.H R.2 of the Civil Procedure Code observed:
"In considering whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, the test to be applied is are the cause of action in the two suits in substance- not technically-identical?
13. It is obvious from the precedents quoted above that if there is a continuous cause of action, then second suit would not be barred. Otherwise, with respect to the earlier cause of action a second suit is barred, if the earlier suit had been dismissed under Order 9, Rule 8 of the Code. Of course, it is not a decision on merit and will not operate as res-judicata but filing of suit will not be permissible.
14. In the present case in hand, earlier suit was for injunction also. Seeking of an injunction indeed, is a continuous cause. If similar threat comes subsequently, in that event subsequent suit will not be barred. To that extent, the order of the trial Court would be justified.
15. But with respect to the contention that respondent-plaintiff is entitled to declaration, indeed, second suit pertains to the same dispute and similar allegations. When such is the position order 9, Rule 9 of the Code would bar the second suit. The petitioner had stepped into the shoes of respondent No. 2. The respondent-plaintiff has no right to challenge the sale. The cause of action as in Suraj Bhan Thirani's case (supra) will not be made out merely because a new purchaser has come. Consequently, to that extent, second suit would be barred. It could only continue with respect to the injunction prayed for by respondent-plaintiff No. 1.
16. For these reasons, the revision petition is partly allowed. It is directed that the suit can only continue with respect to the injunction prayed by respondent No. 1 plaintiff.
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