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Judgment
Ramesh Madhav Bapat, J.—The appellant herein is the original plaintiff. She had instituted a suit bearing No. O.S. 96 of 1986 in the Court of the Principal District Munsif, Kavali. The said suit was filed for setting aside the dismissal order passed in O.S. No. 303 of 1971 dated 3-10-1973.
It appears that O.S. No. 303 of 1971 was filed by the defendants 1 and 2 in O.S. No. 96 of 1986 against defendants 3 to 6 in the aforesaid suit. The plaintiffs in O.S. 303 of 1971 had filed the suit for declaration that they are the owners of the suit schedule property and they were allotted the suit schedule property in the partition, but possession was not given. The plaintiffs in the above suit had also claimed relief of possession.
It appears that during the pendency of O.S. No. 303 of 1971, the plaintiffs therein colluded with the defendants and the suit in question came to be dismissed in default. During the pendency of the aforesaid suit, the suit schedule land was sold by the plaintiffs therein to the present appellant i.e., the plaintiff in O.S. No. 96 of 1986. The said suit came to be dismissed by the learned Principal District Munsiff holding that the suit in the present form is not maintainable.
It appears from the record that the matter was carried in appeal before the learned Subordinate Judge, Kavali by filing A.S. No. 24 of 1988. The learned Subordinate Judge also dismissed the appeal on the ground that the suit in the form is not maintainable.
Hence against the said order and decree, this Second Appeal is filed.
It appears from the record that the appellant herein who is the plaintiff in O.S. No. 96 of 1986 was not impleaded either as a party plaintiff or defendant in O.S. No. 303 of 1971. O.S. No. 303 of 1971 was a litigation between the brothers and cousin brothers. They colluded with each other as per the averments of the appellant herein and during the pendency of the suit the property was sold to the present appellant who is the plaintiff in O.S. No. 96 of 1986. As a matter of fact, Order 9 Rule 9 of the CPC does not contemplate a separate suit for setting aside the order of dismissal of the suit; but it contemplates an application under Order 9 Rule 9 CPC for setting aside the order of dismissal passed. Order 9 Rule 9 CPC specifically lays down that "where 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".
Instead of adopting the procedure contemplated under Order 9 Rule 9 CPC, the plaintiff (appellant herein) filed a fresh suit altogether, which is not maintainable. Moreover the plaintiff/appellant has not participated in O.S. 303/71. Hence I hold that the Courts below rightly dismissed the suit of the plaintiff.
No interference appears to be required at the hands of this Court. Hence the Second Appeal is dismissed. No costs.