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Civil Procedure Code (V of 1908)‑‑

‑‑‑0. IX, R. 9‑‑Decree against plaintiff by default bars fresh suit‑ Where cause of action for two suits is the same, subsequent suit is hit by 0 . IX, R . 9, C . P . C‑‑Valuation of suit and relief claimed do not constitute cause of action or form part of the cause of action for a suit.

According to Order IX, Rule 9, C.P. C. if a suit is dismissed in default, fresh suit on the basis of the same cause of action does not lie. Cause of action is the bundle of facts which are alleged by the plaintiff to secure the relief sought by him. Plea of the petitioner in his earlier suit as well as in the subsequent suit was that U had entered into an agreement to sell the house to him, for Rs.6,000 and handed over the possession 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 U (defendant in the earlier suit) and, on his death, the respondents (defendants in the subsequent suit), who were successors‑in‑interest of U , 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 valuatio6 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.

Ch. Muhammad Yaqub Sabir .for Appellant.

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 agreement 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 lifetime 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 same 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 Din for a declaration to the effect that he 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, therefore, 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 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.

(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 same cause of action does not lie. Cause of action is the bundle of facts which are alleged by the plaintiff to secure the relief sought by him. Plea of the petitioner in his earlier' suit as well as in the subsequent suit was that Umar Din had entered into an agreement to sell the house to him, for Rs.6,000 and handed over the possession 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 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 two Courts below are unexceptionable. This civil revision, accordingly, fails. It is dismissed in limine.

K.B.A./A‑148/L Revision dismissed.

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