Fresh suit is barred in case of dismissal in default
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What This Case Was About
Abdul Haq claimed he had agreed to buy a house from Umar Din in 1975 for Rs. 6,000, paid Rs. 2,000 upfront, and took possession—with the remaining Rs. 4,000 to be paid upon registration of the sale deed. When Umar Din failed to complete the sale, Abdul Haq filed a lawsuit seeking a declaration that he owned the house. However, that first suit was dismissed for "default"—meaning it was dismissed because he failed to appear in court—and he never applied to have it reinstated.
After Umar Din died, Abdul Haq filed a second suit against Umar Din's legal heirs, again seeking a declaration of ownership, and this time also adding an alternative request for "specific performance" (a court order forcing completion of the sale). He argued this second suit was different because it had a different valuation and included a new alternative relief.
What the Court Decided
The court rejected this argument. It held that the "cause of action"—the core set of facts justifying the lawsuit—was identical in both suits: the same agreement, same payment, same possession, same refusal to complete the sale. Simply changing the valuation or adding an alternative prayer for relief didn't create a new cause of action. Under Order IX, Rule 9 of the Civil Procedure Code, once a suit is dismissed in default and not restored, a fresh suit on the same facts is legally barred.
Why It Matters
This case clarifies that litigants cannot circumvent the bar
Generated from the full judgment text below — not a substitute for reading the actual opinion.
PLJ 1987 Lahore 532 Present : muhammad ilyas, J ABDUL HAQ—Petitioner versus Mst. GHULAM F ATI MA and 3 Others—Respondents Civil Revision No. 750 D of 1987, dismisssed on 6-6-1987 (i) Civil Procedure Code, 1908 (V of 1908)— ------ O. VII, R. I (e) — Plaint — Contents of — "Cause of action" — Meaning of—Held : Cause of action to be bundle of facts alleged by plaintiff to secure relief sought by him. [P. 5J3]A (ii) Civil Procedure Code, 1908 (V of 1908)— ------ O. IX, R. 9—Suit—Dismissal in default of—Effect of—Fresh suit- Bar of—Cause of action for subsequent suit found to be not different from suit (earlier filed and) dismissed in default — Held : Cause of action for two suits being same, subsequent suit to be hit by O. IX, R. 9 of Code of Civil Procedure—Held further : Valuation of suit and relief claimed constituting no cause of action and forming not part of cause of action for suit, mere fact of different valuation having been fixed or additional/alternative relief having (also) been prayed in subsequent suit, to make no difference. [P. 534]B Ch. Muhammad Yaqub Sabir, Advocate for Petitioner. Date of hearing : 6-6-1987. order This civil revision has arisen out of a suit brought by the petitioner, Abdul Haq, against the respondents. Mst, Ghulam Fatima and others. According to him, it was on 8th August 1975, that Umar Din, who was predecessor-in-interest of the respondents, agreed to sell a house to him for Rs. 6,000. Umar Din received Rs. 2 000 and delivered possession of the house to the petitioner. He undertook to execute the registered sale deed in favour of the petitioner on receipt of the balance of Rs. 4,000. The petitioner was always ready to pay him Rs. 4,000, but he did not abide by the terms of the agreement. Thus, the petitioner became owner of the said house. On the death of Umar Din, the respondents, however, claimed to be the owners of the house. Hence the suit for declaration to the effect that the petitioner was occupying the house as an owner. In the alternative, he prayed for a decree for specific performance of the agreenent to sell.
2. Suit was resisted by the respondents inter alia on the ground that it was not maintainable. It was disclosed by them that during the life time of Umar Din the petitioner had filed a civil suit against him but the same was dismissed in default and was not got restored. This plea found favour with the Civil Judge, who was seized of the subsequent suit of the petitioner, and the sama was, accordingly, dismissed. The petitioner went in appeal before an Additional District Judge, but in vain. Hence this civil revision.
3. It was not denied by learned counsel for the petitioner that the petitioner had brought suit against Umar Dm for a declaration to the effect that be was in possession of the disputed house as an owner, but it was dismissed in default. It was also conceded by him that the petitioner did not make any application for restoration of the said suit. It was, however, urged by him that valuation of the two suits was different and that relief of specific performance was not claimed by the petitioner in his earlier suit and, there/ore, his subsequent suit was not barred.
4. Plea of the respondent, which was accepted by the two Courts below, was based on the provisions of rule 9 of Order IX of the Code of Civil Procedure, which read as follows :— "9. Decree against plaintiff by default bars fresh suit.— (1) Whether 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 he 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. (3) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to applications under sub-rule (1) )•" According to these provisions, if a suit is dismissed in default, fresh suit on the basis of the sams cause of action doss not lie. Cause of actipnl is the bundle of facts which are alleged by the plaintiff to secure the relief! soujht by him. Plea of the petitioner in his earlier suit as well as in thej subsequent suit was that Umir Din had entered into an agreem:nt to sell the house to him, for Rs, 6000, and handed over the poissssion thereof to him on receipt of Rs. 2,000 towards sale price. As for the balance of the sale price, it was to be paid by the petitioner at the time of the registration of the sale deed, but Umar Din (defendant in the earlier suit) and, on his death, the respondents (defendants in the subsequent suit, who are successor-in-interest of Umar Din), refused to execute the sale deed although he (petitioner) was always ready to pay the balance of Rs. 4,000. It would, therefore, follow that the facts alleged by the petitioner to voice his grievance in both the suits were the same and thus the cause of action for the subsequent suit was not different from that of his earlier suit. No doubt valuation of the subsequent suit was not the same as that of the earlier suit and in the first suit the petitioner had simply prayed for a declaration but in the second suit he had asked for a declaration and had, in the alternative, sought the relief for specific performance but that makes little difference because valuation of the suit and the relief claimed do not constitute cause of action or form part of the cause of action for a suit. Since cause of action for the two suits of the petitioner was the same, his subsequent suit was hit by Order IX, rule 9, of the Code of Civil Procedure.
4. In this view of the matter, judgments and decrees passed by the (wo Courts below are unexceptionable. This civil revision, accordingly, fails. It is dismissed in limine. (TQM) Petition dismissed.