AMRUDDIN ANSARI (DEAD) THROUGH LRS. & ORS.versusAFAJAL ALI & ORS.

                 [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 order passed by the High
     Court of Chhattisgarh at Bilaspur dated 24.10.2019 in Second Appeal
     No.424/2005 by which the Second Appeal filed by the respondents
     herein (original plaintiffs) came to be allowed and thereby, the
     judgment and order passed by the First Appellate Court reversing
     the decree passed by the Trial Court came to be set aside.
2.   For the sake of convenience, the petitioners herein shall be referred
     to as the original defendants and the respondents herein shall be
     referred to as the original plaintiffs.
3.   The facts giving rise to this petition may be summarized as under:
     a.   The history of this litigation goes something like this. In the first
          instance, the father of the original plaintiffs instituted a Civil Suit
          No.37A/1996 in the Court of Ld. Civil Judge, Ramanujganj,
          District- Sarguja, Chhattisgarh for declaration, cancellation
          of sale deed and a permanent injunction. It appears from the
          materials on record that the said suit came to be dismissed
          under the provisions of Order IX Rule 2 of the Civil Procedure
          Code, 1908 (for short “the C.P.C.”). In such circumstances,
          the father of original plaintiffs preferred an application under
          Order IX Rule 4 for restoration of the suit. The said application
          under Order IX Rule 4 of the C.P.C. came to be dismissed. The
          matter was not carried further. The order passed by the Trial
          Court rejecting the application filed under Order IX Rule 4 of
          the C.P.C. attained finality.
[2025] 4 S.C.R.                                                            2653

    Amruddin Ansari (Dead) Through Lrs. & Ors. v. Afajal Ali & Ors.


     b.    Later, the original plaintiffs (legal heirs) instituted a fresh suit
           bearing No.27A/2001 in the Court of Civil Judge, 1st Class,
           Ramanujganj, Tehsil Paal, District-Sarguja, Chhattisgarh for
           the same reliefs.
     c.    The Trial Court framed the following issues:
                “1. Whether the Plaintiffs are having ownership right
                over the suit property mentioned in Appendix-A
                attached to the suit?
                2. Whether the executed Sale Deed dated 19.12.86 is
                having no effect on the plaintiffs being fake, fabricated
                and illegal?
                3. Whether the Plaintiffs are entitled for grant
                of a decree of permanent injunction against the
                defendants with respect to the suit land that the
                Defendant Nos.1,2,3, 4 and 5 themselves and their
                relatives, friends, servants and agents be restrained
                from claiming ownership or entering into the suit
                property or creating any hindrance thereupon?
                4. Whether daughters of Late Rahmat Ali are
                necessary parties to the suit?
                5. Whether the principal of res judicata is applicable
                in the present suit?
                6. Whether there is lesser court fee paid in the suit?
                7. Relief and costs?”
     d.    All the aforesaid issues came to be answered in favour of the
           plaintiffs.
     e.    The original defendants being dissatisfied with the judgment and
           decree passed by the Trial Court challenged the same before
           the District Court in First Appeal. The First Appeal came to be
           allowed. The judgment and decree passed by the Trial Court
           was set aside.
     f.    Being dissatisfied with the judgment and order passed by the
           First Appellate Court, the plaintiffs went before the High Court
           in Second Appeal.
2654                                                        [2025] 4 S.C.R.

                        Supreme Court Reports


     g.   The High Court formulated the following three substantial
          questions of law for its consideration:
               “i) “Whether the learned first Appellate Court was
               justified in holding that since the decree holder did
               not deposit the deficit court fees within the period
               allotted by the trial Court, the decree becomes in
               executable, is correct particularly in view of the fact
               that the deficit court fees has been deposited by
               the plaintiff/decree holder with the permission of the
               trial Court?”
               ii) “Whether the finding. of the first Appellate Court
               that the instant suit was not maintainable in view of
               the doctrine to res judicata, is justified in the absence
               of any evidence that the earlier suit was between the
               same parties and for the same relief?”
               iii) “Whether the finding of the appellate Court that the
               document titled as Vazib Dava of Ex.P.1, by which
               the patta holder Abdul Rajak has relinquished his
               right in favour of the plaintiffs could be ignored only
               on the ground that the same has not been proved by
               examining the attesting witnesses particularly in the
               light of the fact that the same has not been disputed
               by the defendants?”
     h.   The High Court, while allowing the Second Appeal answered
          all the three substantial questions of law referred to above in
          favour of the plaintiffs. The judgment and order passed by the
          First Appellate Court was set aside and the judgment and decree
          passed by the Trial Court came to be restored.
4.   In such circumstances referred to above, the original defendants are
     before this Court with the present petition.
5.   We heard Mr. Mr. Abhinav Jaganathan, the learned counsel appearing
     for the original defendants (petitioners) and Ms. V. Mohana, the
     learned Senior Counsel appearing for the respondent Nos.1 and 2
     respectively (original plaintiffs).
6.   The learned counsel appearing for the defendants (petitioners) has
     three-fold submissions to canvass before us. First, according to him,
[2025] 4 S.C.R.                                                        2655

     Amruddin Ansari (Dead) Through Lrs. & Ors. v. Afajal Ali & Ors.


     the second suit itself was not maintainable. He would submit that once
     an application under Order IX Rule 4 of the C.P.C. stands rejected
     and if such order is not challenged before the higher Court and
     attains finality, then a second suit for the same cause of action and
     for the very same relief is not maintainable. His second submission
     is with respect to the evidentiary value of the document i.e. Wajib
     Dava (Exhibit P-1). According to him, the Wajib Dava of 1952 could
     be said to be hit by Section 54 of the last principles of Mohammedan
     Law read with Section 6(a) of the Transfer of the Property Act, 1882.
     He would also submit that being an unregistered document, the
     same could not have been read into evidence for the purpose of
     establishing a valid title over the property. Thirdly, according to the
     learned counsel the fresh suit filed by the plaintiffs could be said to
     be hit by the doctrine of res judicata.
7.   On the other hand, Ms. V. Mohana, the learned Senior Counsel
     appearing for the plaintiffs would submit that no error not to speak
     of any error of law could be said to have been committed by the
     High Court in passing the impugned judgment and order. She would
     submit that the High Court is right in taking the view that the suit
     was maintainable and was not hit in any manner by the provisions
     of Order IX Rule 4 of the C.P.C. As regards the document i.e. Wajib
     Dava (Exhibit P-1), she submitted that the same has been very well
     considered by the High Court in all respects. In such circumstances
     referred to above, the learned Senior Counsel prayed that there being
     no merit in the petition, the same may be dismissed.

     ANALYSIS
8.   Having heard the learned counsel appearing for the parties and
     having gone through the materials on record, two questions fall for
     our consideration:
     i)    Whether after the dismissal of the petition for restoration of suit
           under Order IX Rule 4 of the C.P.C. a fresh suit is maintainable?
     ii)   Whether after dismissal of the suit for default, a fresh suit is
           barred by res judicata?
9.   Order IX Rule 4 of the C.P.C. reads thus:
           “ORDER IX -Appearance of parties and consequence of
           non-appearance
2656                                                           [2025] 4 S.C.R.

                            Supreme Court Reports


             4. Plaintiff may bring fresh suit or Court may restore suit
             to file.- Where a suit is dismissed under rule 2 or rule 3,
             the plaintiff may (subject to the law of limitation) bring a
             fresh suit; or he may apply for an order to set the dismissal
             aside, and if he satisfies the Court that there was sufficient
             cause for [such failure as is referred to in rule 2], or for
             his non-appearance, as the case may be, the Court shall
             make an order setting aside the dismissal and shall appoint
             a day for proceeding with the suit.”
10. It appears that the High Court placed reliance on a decision of the Privy
    Council in Bhudeo vs. Musammat Baikunthi1. In the said decision,
    the Privy Council took the view that the two remedies prescribed
    under Order IX Rule 4 of the C.P.C. are not mutually exclusive. The
    Privy Council looked into the prefix “or” and ultimately held as under:
             “1. The point raised is whether the two remedies allowed
             to a plaintiff whose suit has been dismissed under Order
             IX, Rule 2 or 3, namely, the remedy of bringing a fresh suit
             or applying to have the dismissal set aside, are mutually
             exclusive. The words of Order IX, Rule 4, are materially
             the same as the words of Section 99, Act XIV of 1882,
             upon this point. The wording is not very happy. The use
             of the word “or” presents many difficulties. In spite of the
             fast that the word “or” is used and in spite of the fast that
             the remedy of bringing a fresh suit is placed first and the
             remedy of having the order set aside is plated second,
             I am of opinion that the lower Appellate Court is right. I
             cannot read into the words of the section the meaning that
             when a person, in good faith believing his suit to have
             been wrongfully dismissed, comes into Court to have that
             order set aside and fails to succeed, that person insure the
             penalty of not being permitted to bring another suit upon
             the same facts. The selection of the remedy of bringing a
             fresh suit involves the plaintiff in the necessity of paying a
             fresh Court-fee and a man would naturally wish to take his
             chance of getting his suit restored and avoiding payment
             of a fresh Court-fee. It does riot seem likely that it was the


1   (1921) 63 I.C. 239
[2025] 4 S.C.R.                                                            2657

    Amruddin Ansari (Dead) Through Lrs. & Ors. v. Afajal Ali & Ors.


           intention of the Legislature that if be took this chance, he
           was to be deprived of all other remedy in event of failure.
           The whole of the argument on the side of the appellant
           practically rests upon the use of the solitary word “or,” and
           I do not think that there is sufficient force in that argument
           to support the appellant’s contention. I, therefore, dismiss
           this appeal with costs.”
11. We are in respectful agreement with the view taken by the Privy
    Council as regards the interpretation of Order IX Rule 4 of the C.P.C.
12. There is one another reason to take the view that a fresh suit is
    maintainable even after the rejection of the application filed under
    Order IX Rule 4 of the C.P.C., keeping in mind Order IX Rule 8 and
    Order IX Rule 9 respectively of the C.P.C.
13. Order IX Rule 8 of the C.P.C. reads thus:
           “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.”
14. Order IX Rule 9 of the C.P.C. reads thus:
           “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 suit.
           (2) No order shall be made under this rule unless notice
           of the application has been served on the opposite party.”
2658                                                           [2025] 4 S.C.R.

                          Supreme Court Reports


15. The plain reading of Order IX Rule 4 of the C.P.C. does not bar the
    filing of a fresh suit, of course, subject to limitation and if that were the
    intention, we might have found in it a provision similar to that in Order
    IX Rule 9 of the C.P.C. referred to above, which states that where
    a suit is dismissed under the Rule 8, the plaintiff shall be precluded
    from bringing a fresh suit in respect of the same cause of action.
16. The basic difference between the two provisions i.e. Rule 4 and Rule 9
    of Order IX CPC is that in the case where the suit is dismissed under
    Rule 2 or Rule 3 of Order IX, the remedy provided is under Rule 4 of
    Order IX of the C.P.C. In case of such dismissal, the plaintiff either
    brings a fresh suit on the same cause of action or he may apply for
    setting aside the order of dismissal and for restoration of suit. Whereas
    if the suit is dismissed under Rule 8 of Order IX of the C.P.C., the
    plaintiff cannot bring a fresh suit on the same cause of action. The
    only remedy available to the plaintiff is to move an application for
    setting aside the order of dismissal and for restoration of suit.
17. From bare reading of the aforesaid two provisions i.e. Rule 4 and
    Rule 9 of Order IX of the C.P.C., it is manifestly clear that under
    Rule 4 of Order IX of the C.P.C., 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 Rule 2 or Rule
    3 of Order IX of the C.P.C., whereas Rule 9 of Order IX debars the
    plaintiff from filing a fresh suit in a case where the suit is dismissed
    under Rule 8 of Order IX of the C.P.C. The only remedy provided
    for such dismissal is to file an application under Rule 9 of Order IX
    of the C.P.C. for restoration of suit.
18. In the case of Govind Prasad v. Har Kishen reported in AIR 1929
    Allahabad 131, a similar question arose for consideration as to
    the maintainability of the second suit. In that case the suit filed by
    the plaintiff was dismissed under Order IX Rule 3 of the C.P.C., in
    consequence of neither party having appeared when the suit was
    called for hearing. The plaintiff-appellant to have the suit restored
    but the restoration application was dismissed. The plaintiff then
    brought a new suit upon the same cause of action. The learned
    Judge dismissed the suit holding that the same is not maintainable.
    In the Civil Revision filed before the Allahabad High Court, the
    learned Judge Weir, following the earlier decisions (39 I.C.191 and
    63 I.C.239), set aside the order of dismissal of suit and held that a
    fresh suit on the same cause of action is maintainable.
[2025] 4 S.C.R.                                                             2659

    Amruddin Ansari (Dead) Through Lrs. & Ors. v. Afajal Ali & Ors.


19. In the case of Mt. Balkesia v. Mahant Bhagwan Gir reported in AIR
    1937 Patna 9, a similar question came for consideration before a
    Division Bench of the Patna High Court. In that case also taking the
    similar view the learned Judge James, observed:
           “Mr. Khurshaid Husnain argues, in the second place, that
           the present suit should be regarded as barred by reason
           of the provisions of O.9, R. 4. O.9, R.4, provides that
           where a suit is dismissed under R. 2, or R. 3, the plaintiff
           may bring a fresh suit, or he may apply for an order to set
           the dismissal aside. Mr. Khurshaid Husnain argues that
           these two provisions are mutually exclusive, so that if the
           plaintiff elects to avail himself of his right to apply to have
           the order of dismissal set aside, he is thereby precluded
           from availing himself of the right to institute a fresh suit.
           The only decisions in point which have been brought to
           our notice by Mr. Khurshaid Husnain are adverse to this
           argument : 63 I C 239 of Stuart, J., A I R 1926 All 678 of
           Daniels, J., and.50) All 837 of Weir, J., all of the Allahabad
           High Court. In all these cases it has been held that the
           alternative provisions of R.4 are not mutually exclusive,
           and that a plaintiff whose application for a restoration
           of his suit has been dismissed is not precluded from
           instituting a fresh suit. I do not consider that any ground
           has been made out which justifies us in differing from
           the view expressed by the learned Judges whom I have
           named. It appears to us that a reasonable reading of the
           rule provides that the plaintiff may bring a fresh suit or he
           may apply for a setting aside the dismissal. If he satisfies
           the Court and obtains an order setting aside the dismissal,
           he proceeds with his original suit. If having applied for an
           order to set aside the order of dismissal, he fails to satisfy
           the Court and his application is dismissed, he is left to his
           alternative remedy which is that he may, subject to the
           law of limitation, bring a fresh suit.”
20. Agreeing with the view, the learned Judge Rowland, has observed:
           “Rowland, J.—I agree. With reference to the argument that
           the dismissal of a suit under O. 9, R. 3, Civil P. C., may,
           coupled with the dismissal of an application for rehearing,
2660                                                          [2025] 4 S.C.R.

                          Supreme Court Reports


           operate to preclude the plaintiff from suing again on the
           same cause of action, I would like to add a few words. It
           seems to me that S. 9. Civil P.C., is fatal to the appellants’
           argument. This section declares that the Courts shall have
           jurisdiction to try all suits of a civil nature excepting suits
           of which their cognizance is either expressly or impliedly
           barred. That is subject to such provisions as those of S.
           11 which bars suits on matters already judiciously decided
           between the parties or of O. 9, R. 9, which precludes a
           plaintiff from suing again on the same cause of action
           where his suit has been dismissed under R. 8, that is to
           say on appearance of the defendant and in the absence of
           the plaintiff. In the absence of some such provision as that
           with which O. 9, R. 9 commences, a dismissal under O.
           9, R. 3 would still, in my opinion, not operate to preclude
           the plaintiff from suing again even if O. 9, R. 4 did not
           expressly save his right of suit. R. 4 in effect does not
           create but declares the right of bringing a fresh suit while
           at the same time permitting the plaintiff in the alternative
           to proceed with his original suit. The former option the
           plaintiff has as of right; the other option is available to
           him only if he can satisfy the Court that he had sufficient
           cause for the non-appearance or other default which led
           to the dismissal of the suit. On the other points I have
           nothing to add.”
21. In the light of the provisions contained in Order IX and the law
    discussed hereinabove, it can be safely concluded that in case of
    dismissal of suit under Order IX Rule 4 of the C.P.C. 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.
22. The next question i.e. question No. (II), that falls for consideration is
    as to whether after dismissal of suit in default under Rule 2 and Rule
    3 of Order IX of the C.P.C., a fresh suit is barred by the principle
    of res judicata.
23. The principle of res judicata is based on the common law maxim
    “nemo debet bis vexari pro una et eadem causa”, which means that
[2025] 4 S.C.R.                                                            2661

    Amruddin Ansari (Dead) Through Lrs. & Ors. v. Afajal Ali & Ors.


     no man shall be vexed twice over the same cause of 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. In
     other words, if an issue involved in a suit is finally adjudicated by a
     Court of competent jurisdiction, the same issue in a subsequent suit
     cannot be allowed to be re-agitated. It is, therefore, clear that for the
     application of principle of res judicata, there must be an adjudication
     of an issue in a suit by a court of competent jurisdiction.
24. The term “judgment” has been defined in Section 2(9) of the C.P.C.
    which means a statement given by a Judge of the grounds of a
    decree or order.
25. The term “decree” has been defined under Section 2(2) of the C.P.C.
    which reads as under : -
           “(2) “Decree” means the formal expression of an
           adjudication which, so far as regards the Court expressing
           it, conclusively determines the rights of the parties with
           regard to all or any of the matters in controversy in the suit
           and may be either preliminary or final. It shall be deemed
           to include the rejection of a plaint and the determination
           of any question within section 144, but shall not include-
           (a) any adjudication from which an appeal lies as an appeal
           from an order, or
           (b) any order of dismissal for default.”
26. From a plain reading of the term “decree”, it is manifestly clear that
    to constitute a decree, there must be a formal expression of an
    adjudication which conclusively determines the right of the parties
    with regard to all or any of the matters in controversy in the suit, but
    the decree shall not include any adjudication from which an appeal
    lies as an appeal from an order or any order of dismissal for default.
    It is, therefore, evidently clear that a dismissal of a suit or application
    for default particularly under Rule 2 or Rule 3 of Order IX of the
    C.P.C. 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
    under Order XLIII of the C.P.C. If we read Order XLIII C.P.C., we
    will find that orders passed under Order IX, Rule 9 of the C.P.C.
2662                                                       [2025] 4 S.C.R.

                            Supreme Court Reports


     or Order IX Rule 13 of the C.P.C. are made appealable, but order
     passed under Order IX Rule 4 of the C.P.C. is not appealable. It is,
     therefore, clear that an order of dismissal of a suit or application in
     default under Rule 2 or Rule 3 of Order IX of the C.P.C. is neither
     an adjudication or a decree nor it is an appealable order. If that
     is so, such order of dismissal of a suit under Rule 2 or Rule 3 of
     Order IX of the C.P.C. does not fulfill the requirement of the term
     “judgment” or “decree”, inasmuch as there is no adjudication. In
     our considered opinion, therefore, if a fresh suit is filed, then such
     an order of dismissal cannot and shall not operate a res judicata.
27. So far as the document Wajib Dava (Exhibit P-1) is concerned, we
    are convinced with the line of reasoning assigned by the High Court.
28. In view of the aforesaid, we see no good ground to interfere with
    the impugned judgment passed by the High Court. In the result, this
    petition fails and is hereby dismissed.
29. Pending application(s), if any, shall stand disposed of.

     Result of the case: Petition dismissed.



     †
         Headnotes prepared by: Ankit Gyan