B.K. Mukerjea, J.
1. This reference has been made by the Munsif of Jalpaiguri under 0. 46, Rule 1, Civil P.C. The question referred to turns upon the construction of certain sections of the Village Self-Government Act and arises in the following manner: The plaintiff filed a suit in the Union Court of Chandanbari for recovery of money due on a note of hand. On the date of hearing the plaintiff was absent, and the suit was dismissed for default, in the presence of the defendant on that date under the provisions of Section 79, Village Self-Government Act. There was subsequently an application for restoration which was also rejected. The plaintiff has now instituted another suit on the same cause of action in the Court of the Munsif at Jalpaiguri. The whole question is as to whether the subsequent suit is barred. Now under Section 93, Village Self-Government Act, the operation of the entire Civil Procedure Code is excluded from suits tried by a Union Court. The provisions of 0.9, Rule 9 Civil P.C., has consequently no application.
2. We have however a corresponding provision in Section 79, Village Self-Government Act, which reproduces the main features of Order 9, Rr. 8 and 9, Civil P. C, but without that clause which precludes a subsequent suit on the same cause of action. The departure is deliberate, and it seems that the legislature did not make any distinction between suits dismissed for default in the presence of the defendant and those dismissed in his absence, when such suits are tried by Union Courts. The provision of Order 9, Rule 9 is after all in the nature of a penalty clause and is a measure of repose, not of absolute justice and there could not be any bar to a suit by implication or analogy. Nor can the general principle of res judicata, which is recognized, independently of the provisions of Section 11, Civil P.C., be invoked in this case, as the suit was not decided at all. What is meant by a decision is clearly indicated in Section 86, Village Self-Government Act, and it is to such decisions which are arrived at on hearing the parties and considering the evidence, that finality is attached under Section 88 of the Act. The fact that the plaintiff could, in this view of the law, get his suit dismissed for default in the Union Court and try his chance in a civil Court, is wholly irrelevant, for the plaintiff has always the right to select the forum and it is to the defendant that a right to get the suit transferred to the civil Court is given under Section 81.
3. We are therefore constrained to held that the order of dismissal in the presence of the defendant under Section 79, Village Self. Government Act, does not bar a fresh suit; and the fresh suit can be instituted either in the Union Court, or in a civil Court as the plaintiff chooses. It is for the legislature to introduce the provisions of 0. 9. Rule 9 in Section 79, Village Self-Government Act, if it so chooses. As the law stands, we cannot say that the suit is barred.
M.C. Ghose, J.
4. I agree.