Mahesh Chand vs Sumnesh Kumar Chaturvedi
2014 Latest Caselaw 5901 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CM(M) No.455/2014

%                                                  18th November , 2014

MAHESH CHAND                                            ......Petitioner
                           Through:    Mr. Krishan Kumar and Mr. Deepak
                                       Vohra, Advocate.

                           VERSUS

SUMNESH KUMAR CHATURVEDI                  ...... Respondent

Through: Mr. N.S.Negi, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? (Yes)

VALMIKI J. MEHTA, J (ORAL)

1. This petition under Article 227 of the Constitution of India

impugns the order of the trial court dated 22.2.2014 by which the trial court

has dismissed the suit on the ground that the suit is barred under Order IX

Rule 8 of the Code of Civil Procedure, 1908 (CPC).

2. The subject suit is a suit for recovery of possession of flat

no.2077, DDA Janta Flats, GTB Enclave, Delhi-110093. Petitioner-plaintiff

purchased the suit property from one Smt. Devki; who was the mother of the

defendant; through registered documents dated 10.2.2006 being agreement

to sell, power of attorney, Will etc. The case of the respondent-defendant in

getting the preliminary issue framed for dismissal of the suit under Order IX

Rule 8 CPC was that Smt. Devki the mother of the defendant had filed a suit

for possession being suit no. 97/2005 and which was dismissed on account

of non-prosecution by the order of the civil court dated 21.4.2007. It is

therefore argued that the subject suit for possession on the same cause of

action was not maintainable by the successor-in-interest of Smt. Devki and

the only remedy of the petitioner/plaintiff was to apply for restitution of the

suit which was dismissed in default on 21.4.2007.

3. Trial court has relied upon the judgment of the Supreme Court

in the case of M/s Parasram Harnand Rao Vs. M/s Shanti Parsad

Narinder Kumar Jain (1980) 3 SCC 565 for dismissing the suit by making

the following observations:-

"Admittedly, the plaintiff has purchased the said property from Smt. Devki on 10.12.2006 while her suit was still pending. Question which arises is whether the present plaintiff can maintain this suit after having purchased the said property from Smt. Devki Devi. In the case of M/s Parasram Harnand Rao versus M/s Shanti Parsad Narinder Kumar Jain (supra), the Hon'ble Supreme Court was considering a similar question. In para 5 of the said report, it was held as under:-

"5. In the first place it was argued that so far as point 1 is concerned, the High Court was wrong in holding that the application of respondent 1 was not barred by the

reason of the dismissal of the appellant's suit for setting aside the ex parte decree by the principle of res judicata or Order 9 Rule 9, CPC. It was contended that even if the previous suit filed by respondent 1 for declaration of his status as a tenant was dismissed for default but as the application for setting aside the decree also failed, there was an adjudication against the then plaintiff-respondent 1 and therefore the present suit was clearly barred by teh principles of res judicata or Order 9, Rule 9. At any rate there can be no escapte from the position that the application of respondent 1 would be clearly barred by the principle contained in Order 9 Rule 9, CPC. In case of Suraj Ratan Thiran v. Azamabad Tea Co., this Court held thus:

We are not however impressed by the argument that the ban imposed by Order 9, Rule 9 crates 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 in Order 9 Rule 9 of the words referring "to those claiming under 'the plaintiff" there is nothing to warrant this argument. It has neither principle, nor logic to commend it... The rule would obviously have no value and the bar imposed by it would be rendered meaningless if the plaintiff whose suit was dismissed for default had only to transfer the property to another and the latter was able to agitate rights which his vendor was precluded by law from putting forward."

Hence, the Hon'ble Supreme Court reiterated that it was not permissible for a subsequent purchaser of property to file a fresh suit if the suit of his predecessor in interest had been dismissed for default. Such suit would be barred under Order IX Rule 9 of the CPC. Hence, the provisions of Order IX Rule 9 CPC are attracted to the present case. I have gone through the case law cited by the counsel for the plaintiff but unfortunately none of them are relevant or applicable to the facts of the present case."

4. In my opinion, the trial court has fallen into a clear cut illegality

in dismissing the suit under Order IX Rule 8 CPC. The provisions of Order

IX Rule 8 and IX Rule 9 CPC read as under:-

"Order IX Rule 8. Procedure where defendant only appears- Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder."

"Order IX Rule 9. Decree against 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."

5. Actually the trial court has wrongly referred to the provision of

Order IX Rule 8 CPC because it is the provision of Order IX Rule 9 CPC

which bars the filing of a fresh suit, however even this provision of Order IX

Rule 9 CPC does not apply because a fresh suit is barred only on the same

cause of action and not on a different cause of action. In a suit for

possession on the basis of title the owner/plaintiff has a continuous and a

fresh cause of action every moment/second/day till 12 years from when the

defendant claims adverse possession, and only on the expiry of 12 years

(vide Article 65 of the Limitation Act, 1963), the right/title of the plaintiff

will stand extinguished in terms of Section 27 of the Limitation Act. Even

the period of 12 years only commences if defendant sets up a plea of adverse

possession and till the plea of adverse possession is set up the period of 12

years does not even begin for a suit for possession to be filed by the owner

with respect to the property owned by him. Once entitlement to claim

possession on the basis of title is at least 12 years and definitely till the

period of adverse possession claimed by the defendant expires, it cannot be

said that the subject suit for possession is filed on the basis of same cause of

action of the earlier suit for possession filed by the mother of the defendant

because each second of illegal possession by a defendant gives rise to a fresh

cause of action for filing of a suit for possession of course till after the

expiry of a period of 12 years as per Article 65 of the Limitation Act read

with Section 27 of the said Act. Every day of trespass gives right to file a

fresh suit every day i.e every day of illegal trespass gives a fresh cause of

action. To complete the discussion, it also needs to be noted that a dismissal

in default for non-prosecution does not amount to res judicata vide Sheodan

Singh Vs. Smt. Daryao Kunwar, AIR 1966 SC 1332.

6. The judgment of the Supreme Court in the case of M/s

Parasram Harnand Rao (supra) relied upon by the trial court did not

pertain to a suit for possession and therefore the general observations made

by the Supreme Court as per the provision of Order IX Rule 9 CPC will not

apply to those suits which are for possession on the basis of title.

7. In view of the above, the impugned judgment dated 22.2.2014

is set aside. Suit for possession of the petitioner/plaintiff as originally filed

will stand revived with respect to all the reliefs which are claimed.

Observations made in the present judgment are only for the purpose of

holding that there is a fresh cause of action to file a suit and the suit is not

barred under Order IX Rule 9 CPC, however, all aspects of merits as per the

stands of the parties will be decided by the trial court in the suit in

accordance with law.

NOVEMBER 18, 2014                              VALMIKI J. MEHTA, J.
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