Fresh Suit Maintainable Even After Rejection of Restoration Application Under Order IX Rule 4 CPC:  Supreme Court Upholds High Court’s Decree Restoring Plaintiffs' Rights

"Dismissal Under Order IX Rule 4 CPC Is Not a Bar to Fresh Suit, Nor Does It Attract Res Judicata": Supreme Court of India in a significant ruling dismissed a Special Leave Petition challenging the maintainability of a fresh civil suit after rejection of a restoration application under Order IX Rule 4 of the Code of Civil Procedure, 1908 (CPC).

The Bench comprising Justice J.B. Pardiwala and Justice R. Mahadevan emphatically held that “where a suit is dismissed under Order IX Rule 2 or Rule 3 CPC, the plaintiff is not precluded from filing a fresh suit on the same cause of action even if his restoration application under Order IX Rule 4 is rejected.”

The Court emphasized that dismissal under Order IX Rule 4 does not constitute an adjudication on merits and therefore does not attract the principle of res judicata.

The litigation stemmed from an original civil suit filed by the father of the plaintiffs in 1996 for declaration, cancellation of a sale deed, and permanent injunction. The suit was dismissed under Order IX Rule 2 CPC due to failure to take necessary steps. An application for restoration under Order IX Rule 4 CPC was subsequently dismissed and attained finality.

Years later, the legal heirs of the original plaintiff instituted a fresh suit in 2001 seeking the same reliefs. The Trial Court ruled in favour of the plaintiffs. However, the First Appellate Court reversed this finding, holding the suit barred by res judicata and non-payment of court fees.

On further appeal, the High Court of Chhattisgarh allowed the Second Appeal, restoring the decree of the Trial Court. Aggrieved, the defendants approached the Supreme Court.

Addressing the core question of law, the Supreme Court reaffirmed the correct interpretation of Order IX Rule 4 CPC, quoting with approval the principle laid down by the Privy Council in Bhudeo v. Musammat Baikunthi, where it was observed: “The two remedies allowed to a plaintiff whose suit has been dismissed under Order IX Rule 2 or Rule 3 — namely, the remedy of bringing a fresh suit or applying to have the dismissal set aside — are not mutually exclusive.”

The Court meticulously distinguished between the implications of dismissals under different provisions. Justice Pardiwala explained that: “A dismissal under Order IX Rule 2 or Rule 3 does not amount to an adjudication on merits. Unlike dismissal under Order IX Rule 8, there is no statutory bar against instituting a fresh suit.”

In regard to the argument that the second suit was barred by res judicata, the Court categorically ruled: “For res judicata to apply, there must be an adjudication on merits. Dismissal for default under Order IX Rule 2 or Rule 3 does not constitute a decree as it lacks adjudication of rights.”

Further, the Court noted that an order rejecting a restoration application under Order IX Rule 4 is not appealable and does not finally adjudicate any substantial rights of the parties.

Another contention pertained to the evidentiary value of the document titled Wajib Dava (Exhibit P-1). The petitioners contended it was inadmissible for lack of registration and attesting witnesses.

The Supreme Court, however, upheld the High Court’s approach, observing:

“The Wajib Dava had not been disputed by the defendants and was rightly appreciated by the High Court as valid evidence supporting the plaintiffs’ title.”

Thus, the Court refused to disturb the High Court’s factual and legal findings.

The Supreme Court's judgment in Amruddin Ansari (Dead) Through LRs & Others v. Afajal Ali & Others provides an authoritative clarification on a vital procedural point: dismissal of a suit under Order IX Rule 2 or Rule 3 CPC, and rejection of restoration under Order IX Rule 4 CPC, does not preclude a fresh suit on the same cause of action, provided the fresh suit is filed within the limitation period.

The Court aptly concluded: "Both remedies — moving for restoration and filing a fresh suit — are simultaneous, independent, and non-exclusive. Technicalities must not override substantive justice."

Accordingly, the Special Leave Petition was dismissed, and the High Court’s decree in favour of the plaintiffs was affirmed.

Date of Decision: April 22, 2025