Jojy George Koduvath

Order IX Rule 9

• Order 9 Rule 9 of the Civil Procedure Code provides that when the suit is wholly or partly dismissed under Rule 8 (dismissed for default) the plaintiff shall be precluded from bringing in a fresh suit in respect of the same cause of action.

Earlier suit for Injunction; present suit for Recovery & Injunction – No Bar

In Ghanchi Pirbhai Kala v. Meghamal Sirumal, 1989-1 Guj LH 539; 1989-1 Guj LR 183, it was held as under:

• (24) …. The earlier suit was filed for injunction alone. … It was not a suit for recovery of possession and injunction…..
• (25) The present suit is not filed on the same cause of action. In this suit the case of the plaintiff is that … possession of the plaintiff has been illegally taken away by the defendants and therefore the possession should be restored. Thus it is evident that cause of action in both the suits is entirely different. Hence the contention raised on the basis of the provisions of Order 9 Rule 9 of C. P. Code has no merits.

In Chelladurai v. Minor Aravind, 2008-4 LW 737 (Mad), the question arose was whether the subsequent suit for possession was not maintainable when the earlier suit for injunction has been dismissed for default.The court answered the question as under:

• “The cause of action for the earlier suit was on account of the attempted trespass in respect of A schedule property. But the cause of action in the subsequent suit was entirely different and the relief was for a decree of recovery of possession. Therefore I am of the view that the subsequent suit in O.S.No.16 of 2003 was not barred under Order IX rule 9 in view of the dismissal of the earlier suit in O.S.No. 64/02. Therefore the first substantial question of law is answered against the defendant.”

Mandatory Injunction Sought For Instead One For Possession

If possession is lost, the plaintiff has to seek recovery; and mandatory injunction would not be sufficient. Court fee is also different for recovery. In Sant Lal Jain v. Avtar Singh, AIR 1985 SC 857, our Apex Court observed as under:

• “7. In the present case it has not been shown to us that the appellant had come to the Court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind at-tempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.”