When the suit was dismissed for the default of plaintiff or his advocate when other side is present under Or.9 rule 8, the only remedy is to file a restoration petition under Or.9 rule 9 but not filing a separate suit – if any suit is filed it is not maintainable and is liable to be dismissed. it was dismissed under the provisions of Order IX Rule 8 of the CPC as the counsel for defendants was present and counsel for the plaintiffs was absent. In view of the provisions contained in Order IX Rule 9 decree against plaintiffs by default bars fresh suit. Order IX Rule 9 is extracted hereunder:- 9. Decree against plaintiff by default bars fresh suit (1) Where a suit is wholly or partly dismissed un – der 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.� In view of the aforesaid, High Court erred in law in holding that the subsequent suit was based on different cause of action, as such it was maintainable. The impugned judgment and order is patently illegal. Thus, it is set aside and the suit is ordered to be dismissed as it was not maintainable. The purchaser is sailing in the same boat as that of the original plaintiffs, he cannot be said to be having better rights than the original plaintiffs.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 6424/2019
(ARISING FROM SLP(C) No. 6330/2018)
MAYANDI APPELLANT(S)
VERSUS
PANDARACHAMY & ANR. RESPONDENT(S)
O R D E R

  1. Leave granted.
  2. The judgment and decree passed by the High Court is liable to
    be set aside on the short and singular ground that in the previous
    suit i.e. Original Suit No.85/1996 a similar relief was prayed by
    Pechimuthu S/o. Arumgasamy Thevar, Minor Manimegalai D/o.
    Pechimuthu, Thilagavathi (Minor) D/o. Pechimuthu and Arul Pandian
    (Minor) D/o. Pechimuthu. Prayer was made for declaration of title
    and for permanent injunction on the basis of Will dated 05.12.2004
    executed by Sadaiyappa Konar which became operative on his death on
    20.02.1995. O.S. No.85 of 1996 was filed in which following prayer
    was made:-
    �A. declaring the plaintiffs 2 to 4 is title to
    the plaint 1 st
    schedule property.
    B. granting the consequential relief of permanent
    prohibitary injunction restraining the defendants
    from disturbing the plaintiffs title, possession
    and enjoyment of the plaint 1 st
    schedule property.
    C. granting permanent prohibitary injunction
    restraining the defendants from sub letting the 2 nd
    schedule house without the written permission of
    the plaintiff.
    D. awarding the costs of this suit to the
    plaintiffs.�
  3. It was on the basis of the Will, Civil Suit No.85/1996 was
    filed. It was dismissed vide order dated 16.03.2001, when the
    counsel for the plaintiffs was absent and the counsel for the
    defendants was present in the Court.
    1
  4. Plaintiff Nos.2, 3 and 4 filed the second suit i.e. Suit
    No.1106/2004 against the defendants. The prayer was made for
    permanent injunction on the basis of the Will only. After filing
    of the suit, Respondent No.1 purchased the property from the
    original plaintiffs.
  5. The High has decreed the suit of the plaintiffs by the
    impugned judgment and decree, while allowing the second appeal.
  6. After hearing learned counsel for the parties, it is apparent
    from the order of dismissal of the prior suit that it was dismissed
    under the provisions of Order IX Rule 8 of the CPC as the counsel
    for defendants was present and counsel for the plaintiffs was
    absent. In view of the provisions contained in Order IX Rule 9
    decree against plaintiffs by default bars fresh suit. Order IX Rule
    9 is extracted hereunder:-
    �9. Decree against plaintiff by default bars fresh
    suit
    (1) Where a suit is wholly or partly dismissed un –
    der 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.�
  7. In view of the aforesaid, High Court erred in law in holding
    that the subsequent suit was based on different cause of action, as
    such it was maintainable. The impugned judgment and order is
    patently illegal. Thus, it is set aside and the suit is ordered to
    be dismissed as it was not maintainable. The purchaser is sailing
    in the same boat as that of the original plaintiffs, he cannot be
    said to be having better rights than the original plaintiffs.
  8. The appeal is, accordingly, allowed.
    2
  9. Pending application(s), if any, shall stand disposed of.
    ………………………J.
    [ARUN MISHRA]
    ………………………J.
    [M.R. SHAH]
    NEW DELHI;
    AUGUST 19, 2019.
    3

ITEM NO.53 COURT NO.4 SECTION XII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 6330/2018
(Arising out of impugned final judgment and order dated 10-10-2017
in SAMD No. 51/2014 passed by the High Court of Judicature at
Madras at Madurai)
MAYANDI PETITIONER(S)
VERSUS
PANDARACHAMY & ANR. RESPONDENT(S)
(IA No. 33847/2018 – EXEMPTION FROM FILING O.T.)
Date : 19-08-2019 These matters were called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE ARUN MISHRA
HON’BLE MR. JUSTICE M.R. SHAH
For Petitioner(s) Mr. Abhinav Ramkrishna, AOR

For Respondent(s) Mr. Parijat Kishore, AOR
(Appearance slip not given)

      UPON hearing the counsel the Court made the following
                         O R D E R

Leave granted.
The appeal is allowed in terms of the signed order.
(NARENDRA PRASAD) (JAGDISH CHANDER)
COURT MASTER COURT MASTER
(Signed order is placed on the file)
4