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RAM NATH versus D.J.

High Court of Judicature at Allahabad

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Ram Nath v. D.J. - WRIT - C No. 14274 of 1989 [2006] RD-AH 12911 (3 August 2006)


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(Court No.51)

Civil Misc. Writ Petition No.14274 of 1989

Ram Nath  vs.  District Judge, Hamirpur and others


Heard learned counsel for the parties.  Petitioner filed suit for permanent prohibitory injunction against respondent nos. 3 and 4 - Raja Ram and Rameshwar seeking to restrain the defendants from interfering in the possession of petitioner over the property in dispute.  Number of the suit was O.S. No.145 of 1981.  Suit was dismissed in default of plaintiff by IInd Additional Munsif, Hamirpur on 8.2.1985.  Restoration application filed under Order 9 Rule 9 C.P.C. was also dismissed on 20..2.1988.  The said order was maintained in appeal (Misc. Civil Appeal No.26 of 1988 dismissed by District Judge, Hamirpur on 29.4.1989).  Hence this writ petition.

It is correct that if the suit is dismissed in default of plaintiff then fresh suit on the same cause of action is not maintainable as provided under Rules 8 and 9 of Order 9 of the C.P.C  However in case defendants-respondent nos. 3 and 4 are still trying to interfere in the possession of the petitioner over the property in dispute then petitioner has got fresh cause of action to file another suit.

In view of the above, I do not feel inclined to interfere in the impugned orders.  Even otherwise the finding that plaintiff failed to prove existence of sufficient cause for his absence on 8.2.1985 in the suit in question recorded by both the courts below is  a finding of fact.

Accordingly, writ petition is dismissed.  

However, if after the dismissal of the suit any fresh cause of action arose to the petitioner due to interference of the respondents in his possession over the property in dispute then he is at liberty to file fresh suit.

It is however clarified that the above observation shall not be treated to be a finding regarding possession of the petitioner over the property in dispute.




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