Order IX Rule 9 CPC provides that where a suit is dismissed for the plaintiff
s non appearance even though the defendant had appeared when the suit was called
for hearing, the plaintiff is not eligible to bring a fresh suit on the same
cause of action but may apply to set aside the order of dismissal on showing
sufficient cause for non appearance. The bar contemplated under the provision is
a prohibition to bring a new suit on the same cause of action.
On the face of it, the prohibition can not apply to an application u/s 125 Crpc
and hence even if a suit is dismissed for default and another suit on the same
cause of action would be barred, yet an application under the Criminal Procedure
code statutorily provided for would not suffer from any disqualification.
It is well settled that the bar contemplated under Order IX, Rule 9 CPC is not
that of Res Judicata, since there is no adjudication of the issues involved in
the Suit by the competent court. The provision of order IX, Rule 9nCPC are only
procedural in character and hence would not have any overriding effect over
Rabindra Biswal vs Hemlata,1990,Cri LJ 45at 46( Ori)