Judgement

MANOHAR PERSHAD, J. :- Balaji Govind Narayan, plaintiff-appellant, filed a suit for possession of the suit property against Hiralal and Pulsibai on the allegation that the suit property originally belonged to Chunnilal Misher who sold the same to one Dhapubai by a registered sale-deed and Dhapubai in turn bequeathed the house in question to first defendant by a will and put him in possession of the same; that in 1351-P first defendant came into possession of a part of the house with permission of second defendant and that later he forcibly came into possession over some other portion; that on 29th Khurdad 1354 P second defendant instituted a suit for possession of the suit property against first defendant and during the pendency of the suit, transferred the suit house by a registered sale-deed dated 8th Shehrewar 1354F. in favour of the plaintiff; that second defendant in collusion with first defendant did not conduct her case properly with the result that the suit was dismissed for default on 16th Azur 1357P. Plaintiff, now claimed possession of the suit house on the basis of the title acquired by virtue of the sale-deed. First defendant resisted the claim of the plaintiff on the ground that Chunilal had adopted one Bansidhar who in turn adopted 1st defendant and that Chunilal was not competent to transfer the suit property in favour of Dhapubai and that Dhapubai also was not competent to make a will. It was further averred that the plaintiff could not file a suit inasmuch as he had purchased the property during the pendency of the suit, the suit having been dismissed for default and not restored later. The trial Court on these pleadings framed 8 issues. Parties led evidence both documentary and oral. The trial Court without going into the merits dismissed the suit holding that the suit was barred under S. 52 of the Transfer of Property Act. Plaintiff, therefore, had come up in appeal here.

2. Shri Neti Subrahmanyam learned counsel for the appellant argued first that the Court below had fallen into an error in holding that the suit of the plaintiff was barred under S. 52 of the Transfer of Property Act. He contends that S. 52 is not at all applicable because the suit was dismissed for default and there was no adjudication on the merits. Reliance was placed on Ghanshamdoss Narayandoss v. Saraswathi Bai AIR 1925 Mad 861 (A), Jagannatha Kone v. Ramachandra Naidu AIR 1936 Mad 589 (B), Manjeswarakrishnayya v. Vasudeva Mallayya ILR 41 Mad 458 : (AIR 1918 Mad 578) (C), Nagubai v. Shamrao (S) AIR 1956 SC 593 (D). He next contended that the Court below had not at all considered the question as to whether the cause of action in the previous suit and the present suit was the same and without going into that question it was not competent to dispose of the case on the ground that it was barred under S. 52 of the Transfer of Property Act. Relying on Order 9. R. 9, the learned advocate contended that under that provision the present plaintiff who had purchased the rights of the original plaintiff could not file a petition for restoration as this remedy was only a personal remedy open to the original plaintiff alone. Reliance is placed on Chand Koer v. Partap Singh ILR 16 Cal 98 (PC) (E) and Gopiram v. Jagarnath Singh AIR 1929 Pat 685 (P). Lastly it is contended that if the intention of the Legislature was to include in the word plaintiffused in Order 9, R. 9, persons claiming through the plaintiff some provision similar to S. 11 or S. 47, Civil Procedure Code, would have been made. Sri B. C. Jain, learned counsel for the respondents contended that the suit was barred under S. 52 of the Transfer of Property Act and the Court below has rightly held it so. With regard to the argument relating to the cause of action, he, however, contended that the cause of action in the previous suit and the present suit was the same and when the Court held that the present suit was barred under S. 52, Transfer of Property Act, it was not necessary for the Court to have gone into the merits. As regards the argument that the plaintiff could not file a petition for restoration under O. 9, Rule 9, it is contended that the plaintiff had purchased the suit property from his wife and as an assignee he could have filed a petition under O. 22, Rule 10, Civil Procedure Code or he could have filed a petition for restoration under O. 9, R. 9 read with S. 146, Civil Procedure Code. Reliance is placed on Gopalakrishnamurthi v. Maddireddy AIR 1949 Mad 882 (G).

3. We will first take up the argument relating to the cause of action. Para 2 of the plaint clearly sets out the facts which would show that first defendant was in possession of the suit house in 1351 Fasli with the permission of second defendant. It further mentions that first defendant came into wrongful possession of another portion of the suit house and that was the cause of action in the previous suit and the same is the cause of action in the present suit. The learned counsel for the apellant after going through this para of the plaint rightly stated that he did not press this point. We therefore, do not desire to go into that question.

4. We do not wish to go into a discussion as to whether S. 52 of the Transfer of Property Act is applicable to this case and whether under that provision the suit would be barred, for, in our opinion, the sole point that has to be considered is whether Pulsibai, the original plaintiff or the appellant could file the subsequent suit after the dismissal of her suit for default or whether the present appellant could proceed with the case by filing a restoration petition.

5. It is conceded on behalf of the appellant that Pulsibai could not file the subsequent suit but the contention is that the plaintiff who purchased the rights of Pulsibai could file suit and not proceed with the case by filing a restoration petition as Order 9. R. 9. Civil Procedure Code, provides for a petition by the original plaintiff alone and the present plaintiff being his assignee could not file a petition for restoration. In order to appreciate this argument a reference to Order 9, R. 9, is necessary. It reads as under.

"Where a suit is wholly or partly dismissed under R. 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."

The question that arises is whether the word plaintiffused in O. 9, R. 9, includes persons claiming through the plaintiff. The contention of the learned advocate for the appellant is that the dismissal of the suit in terms of O. 9, R. 8, did not operate in favour of the defendants as res judicata : it merely imposed a personal disability upon the plaintiff whose suit was dismissed. If the title which the plaintiff in the previous suit was claiming actually vested in him, then the dismissal of the suit in terms of O. 9, R. 8, did not have the effect of displacing that title though it made it impossible for him to recover on the foot of that title. In other words, it is contended, the dismissal of the suit under O. 9, B. 8, did not affect his right but only affected the remedy which would be otherwise available to him to assort his right. The first part of the argument is supported by a decision of the Judicial Committee in ILR 16 Cal 98 (PC) (E). This was a case under S. 102 of the Code of 1882 corresponding to O. 9, R. 9 of the present Code. It was held in that case that the dismissal of the suit in terms of S. 102 of the Code of 1882 was plainly not intended to operate as res judicata although it did impose a certain disability on the plaintiff whose suit was dismissed.

6. In the case of Mamraj v. Chandwa Mal, 117 Pun Re 1891 (H) the question was directly in issue as to whether the word plaintiffused in S. 103, Civil Procedure Code (present Order 9, R. 9) included his representatives or heirs. It was held therein that the word plaintiffmust be held to include plaintiffs heirs and representatives in interest. In so deciding the learned Judges were guided by the decision of the Judicial Committee in Shanker Baksh v. Daya Shankar ILR 15 Cal 422 (PC) (I). This was a suit for redemption filed by one Bhup Singh. He died during the pendency of the suit and Shankor Baksh his grandson was substituted in the place of Bhup Singh. On 18-7-1868, which was the date fixed for the hearing of the suit, the defendants appeared, but Shankar Baksh did not appear, and the suit was therefore dismissed. Subsequently Shankar Baksh instituted another suit for redemption and he appears to have taken two points, one of which was that the defendants did not appear in the earlier suit, so that S. 99 (Order 9, Rule 4 of the Present Code) and not S. 103 applied. The Judicial Committee found that the defendants did appear in the earlier suit. It is obvious that the decision of the Judicial Committee does not establish that the term plaintiff in O. 9, R. 9, includes his heirs and representatives in interest. It may be pointed out that the question was not before their Lordships and could not be decided, for the plaintiff in the subsequent suit was, by substitution, the plaintiff in the earlier suit at the date of the dismissal. This case, therefore, cannot be taken to be a direct authority on the point.

7. Some light, however, is thrown on this question by certain other cases decided under S. 108 of the Code of 1882. This section provides :

"In any case in which a decree is passed ex parts against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and, if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall pass an order to set aside the decree upon such terms as to costs, payment into Court, or otherwise, as it thinks fit and shall appoint a day for proceeding with the suit.

The question cannot arise under O. 9, B. 13 of the present Code which corresponds to S. 108 of the Code of 1882. The question, however, did arise under the old Code whether the representative in interest of the defendant was competent to apply under S. 108 for an order to set aside the ex parte decree, if it so happened that the defendant died after the passing of the ex parte decree. The remedy afforded by S. 108 was in terms limited to the defendant against whom the decree was passed ex parte just as the bar imposed by Order 9, Rule 9. in terms affects the plaintiff whose suit is dismissed under R. 8.

8. The Allahabad High Court in the case of Janki Prasad v. Sukhrani ILR 21 All 274 (J) held :

"In order to make this remedy available to the legal representatives, some general principle of law would be necessary by which the word defendant should be construed as including the legal representative of a deceased defendant".

9. The Calcutta High Court in the case of Ganoda Prasad Roy v. Shib Narain Mukherji, ILR 29 Cal 33 (K) did not agree with the view of the Allahabad High Court. We may at this stage refer to the observations of the learned Chief Justice which are to the following effect :

"That decision, viz., the decision in the Allahabad High Court appears to me to be based upon too narrow a construction of the section and one which might lead to various anomalies and much injustice and, unless we are actually compelled by the language used to place such a construction upon it, I think we may fairly decline to do so."

He added :-

"No doubt the section only refers to the defendant, but we may look at the whole Code to see who is meant by that term and who fills that position. There is ample provision in the Code for bringing the representatives of a deceased defendant before the Court and substituting the former for the latter, and when that substitution has been duly effected such representatives become the defendants and subject to all the obligations, qua procedure of the original defendant. And, if they became subject to the obligations, why are they not entitled to the rights and benefits, qua procedure of the original defendants."

10. It would appear that in this Calcutta case plaintiff himself brought the representatives of the original defendants upon the record and made them defendants. Referring to this aspect of the case the learned Chief Justice states as follows :-

"The decree is binding upon them as such representatives, and, if they are bound by the decree as they are, it would be inequitable that they should not enjoy the same right under S. 108 as the original defendant enjoyed."

11. The identical question had arisen in the Madras High Court in the case of Sambasiva Chetti v. Veerapparumal Mudali ILR 28 Mad 361 (L). Their Lordships of the Madras High Court took the view that S. 108 only authorises applications by the defendant against whom an ex parte decree has been made.

12. Having regard to this conflict of decisions the Code of 1908 has provided by S. 146 that :-

"Save as otherwise provided by this Code or by any law for the time being in force where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him."

13. This S. 146 removes the difficulty which used to arise under the old Code in cases coming under S. 108 of that Code. Order 9, R. 9 read with the present S. 146 would, in our opinion, be a sufficient answer to the contention raised on behalf of the appellant.

14. The case of AIR 1929 Pat 685 (F), no doubt deals with the point in question but that case is distinguishable. No doubt in that case their Lordships of the Patna High Court have held that the word plaintiff used in O. 9, R. 9, does not include his representative. But this does not help the contention of the appellant as their Lordships while considering this question have observed that there is sufficient difficulty in coming to that conclusion on that point, and have refrained from deciding the question as to whether O. 9, R. 9, would have been an answer to the suit if the present plaintiff had not taken advantage of the procedure of that rule for the purposes of securing an order to set aside the dismissal of suit No. 98 of 1918. In that case the plaintiff had got himself substituted on record in the appeal in place of Guruprosad Singh, the original plaintiff, to enable him to contest the order of 21st February, 1920. In other words he took the appropriate proceedings to entitle him to the rights and benefits, qua procedure, of the original plaintiff. By his conduct the plaintiff placed himself in the position of Guruprosad Singh for the purposes of O. 9, R. 9. Under those circumstances their Lordships held that he ought to be affected with the disability of the original plaintiff. We do not think this ruling, in any way, helps the contention of the learned advocate for the appellant.

15. ILR 28 Mad 361 (L), was a case prior to the introduction of S. 146 in the present Code. This ruling, therefore, in our opinion is not at all helpful in deciding the present question.

16. In the case of AIR 1949 Mad 882 (G), the question whether the word plaintiffused in O. 9, R. 9, includes his representatives in interest had come up before the Madras High Court in another case. Satyanarayana Rao, J., held that the word plaintiffincludes his heirs and representatives in interest. Section 146, Civil Procedure Code, which was introduced for the first time in the Code of 1908 and was intended to resolve the conflict between the decisions of the various High Courts on the question whether a legal representative of a defendant could apply under O. 9, R. 13, to set aside an ex parte decree no doubt enables an assignee or any other person deriving interest from the plaintiff to apply under R. 9 to set aside an order under R. 8 as it equally enables a representative of a defendant to set aside an ex parte decree. The position therefore is that by virtue of S. 146 it is open to a person deriving title through the plaintiff to apply under O. 9, R. 9, to set aside an order under R. 8. Does it, therefore, imply that the word plaintiffin R. 9 should be construed as plaintiff and his representativesand does the disability apply also to the representative. We do not see any reason why the disability should not extend to persons claiming through a plaintiff against whom an order under R. 8 dismissing the suit was passed. If the disability does not extend to persons deriving title through the plaintiff it would enable the plaintiff to circumvent the provision of R. 9 by making an assignment after an order dismissing his suit was passed under R. 8. What is urged is that when the legislature intended that where the proceedings between two parties should be binding upon representatives in interest of those parties, it has expressed that intention in unambiguous terms and when it has not been done so under O. 9, R. 9 it cannot be taken that the word Plaintiffused here would include persons claiming through him

17. No doubt both Ss. 11 and 47 of the Code refer to not only parties but also representatives and the non-mention of representatives or persons deriving title through the plaintiff in O. 9, R. 9, Civil Procedure Code, may suggest that the bar under R. 9 does not extend to representatives. We do not see any reason for holding that the plaintiff in R. 9 does not include his heirs and representatives in interest on the general principle of law that an order by or against a person binds not only him but also heirs and representatives. The heirs and representatives cannot be in a better position than the person through whom they derive title.

18. We are, therefore, definite that the word plaintiffused in O. 9, R. 9, includes his heirs and representatives in interest. The present plaintiff is the assignee of the original plaintiff. He purchased the suit property by a registered sale-deed, dated 8th Shehrewar 1354-F. The previous suit was only dismissed for default on 16th Azur, 1357-F. The present plaintiff, therefore, could have filed a petition under O. 22, R. 10, which he did not. As discussed above, he could have filed a petition under O. 9, R. 9. read with S. 146, Civil Procedure Code. The effect of the dismissal of the suit under O. 9. R. 8, is that the plaintiff-appellant is debarred from filing a subsequent suit. The only remedy open to the plaintiff-appellant was to apply for a restoration of the suit under O. 9, R. 9, or to apply for a review of the order. The present plaintiff has not availed of any of those remedies open to him but has filed the present suit. This suit of the plaintiff, in our opinion, is not maintainable under O. 9. R. 9.

19. In the result we do not find any force in this appeal and we are in agreement with the lower Court though on different grounds, that the suit should be dismissed.

The appeal is, therefore, dismissed with costs throughout.

Appeal dismissed.