Skip to content


Bhudeo Vs. Musammat Baikunthi - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in63Ind.Cas.239
AppellantBhudeo
RespondentMusammat Baikunthi
Excerpt:
civil procedure code (act v of 1908), order ix, rules 2, 3, suit dismissed under--remedies allowed to plaintiff, whether mutually exclusive. - - the wording is not very happy. i cannot read into the words of the section the meaning that when a person, in good faith believing his suit to have been wrongfully dismissed, comes into court to have that order set aside and fails to succeed, that person insure the penalty of not being permitted to bring another suit upon the same facts. it does not seem likely that it was the intention of the legislature that if be took this chance, he was to be deprived of all other remedy in event of failure......whose suit has bean dismissed under order ix, rule 2 or 3, namely, the remedy of bringing a fresh suit or applying to have the dismissal set aside, are mutually exclusive. the words of order ix, rule 4, are materially the same as the words of section 99, act xiv of 1882, upon this point. the wording is not very happy. the use of the word 'or' presents many difficulties. in spite of the fast that the word 'or' is used and in spite of the fast that the remedy of bringing a fresh suit is placed first and the remedy of having the order set aside is plated second, i am of opinion that the lower appellate court is right. i cannot read into the words of the section the meaning that when a person, in good faith believing his suit to have been wrongfully dismissed, comes into court to have.....
Judgment:

Stuart, J.

1. The point raised is whether the two remedies allowed to a plaintiff whose suit has bean dismissed under Order IX, Rule 2 or 3, namely, the remedy of bringing a fresh suit or applying to have the dismissal set aside, are mutually exclusive. The words of Order IX, Rule 4, are materially the same as the words of Section 99, Act XIV of 1882, upon this point. The wording is not very happy. The use of the word 'or' presents many difficulties. In spite of the fast that the word 'or' is used and in spite of the fast that the remedy of bringing a fresh suit is placed first and the remedy of having the order set aside is plated second, I am of opinion that the lower Appellate Court is right. I cannot read into the words of the section the meaning that when a person, in good faith believing his suit to have been wrongfully dismissed, comes into Court to have that order set aside and fails to succeed, that person insure the penalty of not being permitted to bring another suit upon the same facts. The selection of the remedy of bringing a fresh suit involves the plaintiff in the necessity of paying a fresh Court-fee and a man would naturally wish to take his chance of getting his suit restored and avoiding payment of a fresh Court-fee. It does not seem likely that it was the intention of the Legislature that if be took this chance, he was to be deprived of all other remedy in event of failure. The whole of the argument on the side of the appellant practically rests upon the use of the solitary word 'or,' and I do not think that there is sufficient force in that argument to support the appellant's contention. I, therefore, dismiss this appeal with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //