Holding

A dismissal for non‑prosecution is not a decision on the merits and therefore does not give rise to res judicata; Order IX Rule 9 is inapplicable, and the State’s later proceeding is not barred.

Summary

The State of Uttar Pradesh, owner of a parcel of land managed by the Nagar Palika, sought eviction of alleged unauthorized occupants under three different statutes: a 1960 suit for permanent injunction filed by the Nagar Palika, a 1970 proceeding under the Uttar Pradesh Public Land (Eviction and Recovery of Rent and Damages) Act, 1959, and a 1988‑89 proceeding under the Uttar Pradesh Public Premises (Eviction of Unauthorized Occupants) Act, 1971. The later proceeding was challenged on the ground that it was barred by res judicata, relying on the earlier suit and the 1970 case, both of which had been dismissed for non‑prosecution. The District Judge held the matter barred, an order affirmed by the Allahabad High Court. The Supreme Court held that a dismissal for non‑prosecution under Order IX Rule 8 does not constitute a decision on the merits and therefore cannot give rise to res judicata; consequently Order IX Rule 9 does not apply. The Court also noted that the State was not a party to the 1960 suit and that the 1970 case was ultra vires, so neither could bind the State. The appeals were allowed, the High Court order set aside, and the matter remitted to the District Judge for a merits‑based determination.

Issues considered

The dismissal of the 1970 proceeding for non‑prosecution operates as res judicata under Order IX Rule 9, CPC.
Whether the 1960 suit filed by the Nagar Palika, in which the State was not a party, can bar the State's later action under the Public Premises Act.
Whether Order IX Rule 9 of the CPC is applicable to a dismissal that was not made under Order IX Rule 8.
Whether the principle of res judicata applies to the State's proceeding under the Uttar Pradesh Public Premises (Eviction of Unauthorized Occupants) Act, 1971.

Legislation cited

Code of Civil Procedure, 1908s. Order IX Rule 8, s. Order IX Rule 9

Subjects

res judicatanon‑prosecution dismissalOrder IX Rule 9 CPCpublic premisesunauthorised occupationevictioncivil proceduredefault judgmentrecurring cause of action

Judgment

[2008) 16 S.C.R. 629

' ..... STATE OF U.P. & ANR. A
. 5 ._. •• o' II. '.. .,
... JAGDISH SARAN AGRAWAL. & ORS.
(Civil Appeal Nos. 6757 ~675e of. 2008)
NOVEMBER 25; 2008
,;f

~ • I ' .; l.. '
B.
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAl\ll .'.:« "
SHARMA, JJ.] ,.· ··

.·Code of Civil Prqcedure, 1908:
c
s. 11 - Res judicata - Dismissal of suit for non-
prosecution - Held: Not a decision on merit and consequently·
can~ot operate as re~judicata.

U.P. Public 'Premises (Eviction of Unauthorized·
Occupants) Act, 1971 - Case by State before Prescribed D
Authority for eviction - Dismissed for non-prosecution -
Applicability of Or. 9, r. 9 .:.. Held: Not applicable, since the case
was not dismissed under Or. 9 r.8 ..:.. Code of Civil Procedure,
1908- Or.9, r.9.
E
The land in question was purportedly owned by the
State of Uttar Pradesh and under the management· of the
Nagar Palika. The Nagar Palika filed suit No. 25 of 1960
in the court of Munsif for permanent injunction in respect
ofthe.said land. The said suit, in which the State of Uttar F
._ Pradesh was not a party, was dismissed. Subsequently,
the State of Uttar Pradesh initiated proceedings in respect
of the land under th'erU.P. Public· Land (Eviction and
Recovery of Rent and Damages) Act, 1959, numbered as
Case No. 521 of 1970. The proceedings were dismissed G
for non-prosecution. Thereafter the State of Uttar Pradesh
~. initiated proceedings (Case No. 111988-89) under the U.P.
Public Premises (Evic.tion of Unauthorized Occupants)
!
.Act, 1971. The preliminary objection raised.by the alleged
629 H
630 SUPREME COURT REPORTS [2008] 16 S.C.R.

A unauthorized occupants that the proceedings were
barred by the principles of res judicata ln view of the
orders passed in the·Case No .. 521 of' 1910- ahd Suit No.
25of1960 as-well as on·the principles QfOr.9~, r.9, CPC,
was rejected by the _presc:ribed. A4thor!ty. The appeal filed
B by respondents was allowed by the Oistrict Judge. Writ
petitions ,fifed by the:. State .and the Nagar j;l.alika were
dismissed by the High Court.· Aggrieved, the writ
petitioners filed the in'stant appeals.

Allowing the appeals and remitting the matter to the
C District Judge to decide the proceedings 6n merits, the
Court ·\

HELD: The suit filed by Nagar Palika was dismissed
on technical ground and in any case the State was not a
D party the.reto. So far the case wherein the State was a
party and, amendments were made, the same was
dismissed f9r non-ptosecu~ion, but it was not dis.n:iissed .
under. Or.9 ·r.8, Ct'C. therefore,. Or.9, r~9, CPC_ cati.IJOf be
said to be applicable. The dismissal of the case .fol• no'1-
E prosecution was not a decision on rherits. Consequently,
t'1e said order cannot operate as res judicaJa. [Paras 13,
15] [638-.A ..B, H; 639-A].
• \ • < • \ 1, 'i.

. Ram Gobinda Dawan v. Bhaktab,aia 1971 (1) SCC 387;
F Staie. of UP.'v. C[vi/'Judge (1SS6) 4 sec 558 and LSta.te of
UP. v. Rup. Lal Sharma (1997)'2
·-·
SCC 1962, ref~r.fed
..
to._. .' .

y
· Case Law Reference: ·

. 1971·(1) sec as7 _• ~r.eferred to Para 10
G
(1986) 4 _sec 558 referred to . , . ,Para 11

! ' '
,(1997) 2 scc.19~2
! -. : • ~ . '.
. refe~red· to
.... ' ~: .
Para'.12
.' CIVIL APPELLATE JURISDICTION-,: Civil 'Appeal No.
H
STATE OF U.P. & ANR. v. JAGDISH SARAN AGRAWAL & 631
ORS.
~
~ 6757-6758 of 2008. A

From the final Judgment and Order dated 5.2.2004 of the
High Court of Judicature at Allahabad in C.M.W.P. Nos. 20165
and 21654 of 1994.

. · Pramod Swarup, T.N. Singh,, Manoj Dwivedi .and G.
8
Venkateswara Rao for the Appellants.
._
-i
H.L. Aggarwal, S.R. Singh, G.S. Bhatt, P.K. Bhatt,
Rameshwar Prasad Goyal and Debasis Misra for the
f c
Respondents.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned D
Single Judge of the Allahabad High Court dismissing the writ
petitions filed by the State of Uttar Pradesh and the Municipal
~
Board Nagar Palika Lalitpur (hereinafter referred to as the
'Board'). Both the writ petitions were directed against the
order dated 11th February, 1994 passed by the District E
Judge, Lalitpur. By the said order learned District Judge
allowed appeal No. 23 of 1992 filed by the respondent No. 1
Jagdish Sharan Agrawal and two others. State of U.P. and 27
others were parties. It was held in that. order that the
proceedings initiated by the State against Jagdish Sharan F
Agrawal and others under the Uttar Pradesh Public Premises
(Eviction of Unauthorized Occupants) Act, 1971 (in short the
·Act') were barred by the principle of resjudicata, in view of the
decision of the proceedings, which were initiated earlier by the
Nagar Palika, Lalitpur, being suit No. 25 of 1960 as also in view G
of the dismissal of the.proceedings which were :nitiated by the
y
State of Uttar Pradesh being case No. 521-353 under Section
3(1) of the Uttar Pradesh Public Land (Eviction and Recovery
of Rent and Damages) Act, 1959 (in short the 'Eviction Act').
H
STATE OF U.P. & ANR. v. JAGDISH SARAN AGRAWAL & 633
ORS. [DR. ARIJIT PASAYAT, J.]
~-
5. Against the said order, Jagdish Sharan Agrawal and A
others approached the High Court by a Writ Petition which was
dismissed by order Dated 18th February, 1992 on the ground
that the alternative remedy was available. Appeal ~o. 23 of
1992 before the District Judge, Lalitpur, was filed under Section
9 of the Act. District Judge held that the proceedings initiated 8
JI by the State under Case No. 1 of 1988-89 was barred by the
..,.. principles of res judicata in view of the earlier orders passed
in Suit No. 25of1960 and 521 of 1970. The present appellants
took the stand that the judgment in question does not operate
as resjudicata between the parties in as much as in the said c
suit filed by the Nagar Palika, State of Uttar Pradesh was not
a party. The State being the owner of the land and the land
being only under the management of Nagai' Palika, in view of
paragraph 47 of the Nazool Manual, any proceeding initiated
by the Nagar Palika to which the State of Uttar Pradesh is not D
a party cannot be said to be binding on the State.

-4
6. The High Court found that admittedly in suit No. 25 of
1960, the State was not a party and therefore if any finding was
recorded therein the same was not binding on the State. But
so far as proceeding in Case.No. 521 of 1970 is concerned, E
the Eviction Act itself was held to be ultra vires by this Court
and consequently all proceedings taken therein are null and void
and cannot be said to be binding on any person whatsoever,
including the parties which were li~igating there under.
F
. 7. The High Court found that there was substance in the
aforesaid plea raised by Jagdish Sharan Agrawal and others.
However after going through the records, it was established that
although initially a notice under the provisions of the Eviction
Act was issued and proceedings were initiated against the G
j alleged unauthorized occupants, yet the Act itself havi'ng been
~
declared ultra vires by this Court, the State chose to proceed
with the matter after making necessary amendments and taking
necessary steps under the Eviction Act. It is thus established
that the original proceedings were converted to proceedings H
· 634 Sl)PREME COURT REPORTS [2008] 16 S.C.R.

A .und~r the Act. The proceedings were dismissed for default by
the Pre.scribed Authority on 26.11.1976. An application for
recall of the orders was also dismissed for non-prosecution. The
High Court was of ihe view. that proceedings initiated by
:is~uance, of notice under .the provisions the Evi<?tion Act
ot'
.a having been converted into proceedings under the Act, the order
of dismissal has .become final between the parties and was not lt.

_cha}J~ng~~,,furth~r. It. was held that if proceedings were
permi~tt;d ,to be ,initiated and proceedings are decided directing
.eviction, it would amount to conflicting orders between the same
C parties, iri respec;t ot'same pren:iises which is not justified. It was
held .that to take care of sue~ situations, the requisite principles
are enshrined. un.der Order IX. Rule 9, CPC. Though the
provi~i9n~ J~9 nqt. directly apply to proceedings under the
.Eviction Act, they .will apply wi~h full force to the facts of the
.D ·preserit case·and the State.cannot be permitted to file such an
application. against some person after its earlier application is
dismissed for whatever 'reason~ may be. Therefore, the Writ
Petition was dismissed. ·

:8. Learned cou.ns.el ·for .the 'appellant submitted that
E d1srriissal f()r ..default ·does -not operate as .resjudicata. It is
pointed out that there is a recurring cause of action. Since 1959
Act was de9l~red to be. ~ltra vires, the .proceedings were
initiated, ~tate ~as not a party in t.he s~it by Nagar Palika and
the High ,Court was wrong in holding that the principles of
F resjudicata apply so far as State i~ concerned. It is submitted
that the principles of .resjud;cata do ·not apply to the facts of
the case as there was no decision on merit. One remedy was
restoration and other remedy was the second suit because of
continuing cause of action. There. is no finding that the non
G official respondents were authorized occupants.

9..Learned counsel for the respondents on the other hand
support~d the ju.dgment, taking Jhe stand that the proceedings
are summary in nature. The effect of the order dated
H ~0.10.1959 by the Governmen! of India, Uttar Pradesh in appeal
STATE OF U.P. & ANR. v. JAGDISH SARAN AGRAWAL & 635
ORS. [DR. AR!JIT PASAYAT, J.]
under Section 7(1) of the Uttar Pradesh Roads and Lands A
(Control) Act, 1943 (in short the 'Road Act') clearly applies to
the facts of the case and the order in question has become final.

10. In Ram Gobinda Dawan v. Bhaktabala [1971 (1) SCC
387] it was held as follows: B
)
"21. It is interesting to note that though it was urged that
1' the decision of the Privy Council was given in default of
appearance of B and his mortgagee C and therefore the
said decision will not operate as res judicata, this Court
did not hold that a decision given even in the first instance c
in default of appearance of a party will operate as res
judicata. On the other hand, this Court categorically held
that C, the mortgagee had fought out the title of mortgagor
B, both before the Land Acquisition Court and the High
Court and had obtained a judgment in his favour after a D
full contest.

~ 22. It is the view of this Court that the mere fact that the
mortgagee did not choose to appear before the Privy
Council and the decision of the Privy Council was given E
in the absence of the mortgagee, is of no consequence
as the-decisions of the High Court and the District Court
have been given after contest. Therefore it will be seen that
the decision of this Court relied on by Mr Mukherjee is no
authority for the wide proposition that even if there has
F
;J been no hearing and final decision by any court, at any
stage, after contest, the decision will operate as res
judicata.

23. For an earlier decision to operate as resjudicata it has
been held by this Court in Pu/avarthi Venkata Subba Rao G
.... v. Valluri Jagannadha Rao [AIR 1967 SC 591] that the
.....
same must have been on a matter which was "heard and
finally decided".

24. In Sheodan Singh v. Daryan Kunwar [AIR 1966 SC H

_L
636 SUPREME COURT·REPORTS [2008] 16 S.C.R

~
A 1332] the question whether a decision·given by the High-
Court dismissing certain appeal on the ground of limitation J
or on the grqund that the party had· not taken steps to
prosecute the appeal operates as res judicata, was
considered by this Court. lri that case A had instituted
B against B two suits asserting title to certain property. B
contested those claims and also instituted two other suits \..

to establish his title-to the same property as against A. A's
suits were decreed and B's suits were dismissed. B filed -+-
fqur appeals, two appeals agains(the decision ·given in A's
c suits and two appeals against the dismissal of his two suits.
It is seen that all the appeals were taken on the file of the
'High Court but the two appeals filed by B against the
·'decision in the suits instituted by him were dismissed by
the High Court on the grounds that one was filed beyond
the period of limitation and the other for non-prosecution.
D
At the final hearing the High co·urt took the.view that the
dismissal of B's two appeals, referred to above, operated
. as res judicata in the two appeals filed by B against the -+
decision in A's suits on the question oftitle to the property.
It was urged before this Coµ rt on_ behalf of B that the
E dismissal of his ap'peals on the groung of_ limitation and
non-prosecution by the High Court. does not operate as res
judicata as the High Court cannot be considered ~o have
"heard and finally deqided'' the ql.iestiOn of title. This
contentioJ;l was not. accepted: This Court referred to
F instances where a formet suit was dismissed _by a trial
)(
court for want of jurisqiction o~ for default 9f. plaintiffs
appearance etc. and pointed out that in respect of such
class ofcases,.the decision not being on merits, would not
be res j1,1dicata in a subsequent suit It was further pointed
G out that none of those considerations apply' to ~ case where
a-decision is given on the merits by the trial court and the ~
)I'
matterJs· taken in appeal and the appeal is dismissed on
some preliminary ground, like limitation or default in
printing. It was held that such dismissal by an appellate
H · court has the effect of confirming the decision of the trial
STATE OF U.P. & ANR. Ii. JAGDISH SARAN AGRAWAL.& 637
ORS. [DR. ARIJIT PASAYAT, J.]

~ court on merits, and that it "amounts to the appeal being A
. heard and finally decided on the. merits whatever may be
the groundJor dismissal of the appeal".

11 . The positior-i was reiterated. in State of U.P. v. Civil
Judge [1986(4) sec 558]. I B
.J
12. So far as the· recurring. cause. of action is concerned
-y· this Court in State of U.P. v. Rup Lal Sharma [1997(2) SCC
1962] held as follows:

"Public premises" is defined in Section 2(e) of the c
Act as meaning any premises 'Jbelonging to or taken on
·lease or requisitioned by or on behalf of the State
Government ... ". The first respondent never disputed that
the building belongs to the Government and all he has said
was that it belongs to the· Government Estate. It does D
not matter. The definition of public premises is so wide as
to hedge in all such buildings whether it actually belongs
.( to Government as such or only to a government
department or even a building belonging to a private
individual if the Government have req·uisitioned it or some .E
person on behalf of the Government has requisitioned it.
Hence t_here is no escape from concluding that the building
in question is public premises.

7: "Unauthorised occupation" is defined in Section 2(g).
The definition- comprises within its contours occupation of
F
,J
the public premises.by any person without authority.for such
occupation, and also the continuance in occupation of such
premises by any person after the authority (under which or
the capacity in which he was allowed to hold or occupy the
premises) has expired or has been determined for any G
reason wf:latsoever. Thus continuance in occupation after
')r
the determination of such ·authority would also make the
occupation unauthorised for the purpose of the said Act."

H
638 SUPREME-COURT REPORTS . [2008] 16 S.C.R.

-1-
A ·1 · 13. In the present case, the suit filed by Nagar Palika was
dismissed on technical ground and in any case the State was
not a party. So far the suit where the state was a party and
amendments were maqe, the same was dismissed for non-
prosecution. But the sa·me was not dismissed under Order IX
B Rule8.
\-

14. Order IX-Rule 8 and Order IX Rule 9 of CPC read as
follows: l

Rule 8. Procedure where flefendant only appears
c
, Where the defendant appears and the plaintiff does not
appear when the suit is called on for hearing, the Court
shall make an order that the suit be dismissed, unless the
defendant admits the claim or part thereof, in which case
D the Court shall pass a decree against the defendant upon
such admission, and, where part only of the claim has been
. ·- admitted, shall dismiss the suit so far as it relates to the
..):
remainder.

Rule 9. Decree against plaintiff by default bars fresh
E
suit '

(1) 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
F for an order to set the dismissal asioe, and if .he .satisfies
the Court that there was sufficient cause for his n·on- x
appear~nce when· the suit was called on for hearing, the
Court shall make an order setting aside the dismissal upon
s_uch terms as to costs or otherwise as it thinks fit, and shall
G appoint a day for proceeding with suit.
f
·~
(2) No order shall be made under this rule unless notice
of the ·application has been served on the opposite party.

15. Therefore Order IX Rule 9 can not be said to be
H
STATE OF U.P. & ANR. v. JAGDISH SARAN AGRAWAL & 639
ORS. [DR. ARIJIT PASAYAT, J.]

applicable. The dismissal of the suit for non-prosecution was A
not a decision on merit. Consequently, the said order cannot
operate as Resjudicata.

16. Above beihg t~e position the High Court's order is
clearly unsustainable and is set aside. fhe matter is remitted B·
to the District Judge, Lalitpur· to decide the proceeding on .
merit. Appeals are allowed but with'out any order as to costs.

B.B.B. Appeals aflowed.