1. This is an appeal by the plaintiff in a suit for recovery of possession of land on declaration that a decree for arrears of rent and the execution sale con sequent thereon have not affected his right, title and interest. The claim has not been tried on the merits bat has been dismissed on the preliminary ground that it h barred under the provisions of Section 11 and Order IX Rule 9 of the Civil Procedure Code of 1908. The reasons assigned in support of this view may be briefly stated. The plaintiff instituted a suit on the 18th June 1909 in the Court of the Munsif of Burdwan for declaration that the rent-decree mentioned and the sale consequent thereon were fraudulent; there was no claim for recovery of possession, as on the date of the institution of the suit, the plaintiff had not been deprived of possession of the disputed property. The relief claimed was valued at Rs. 600. The suit was not tried on the merits and was dismissed for default on the 6th June 1910. On the 30th September 1910, the plaintiff instituted the present suit in the Court of the Subordinate Judge for recovery of possession of the land which she valued at Rs. 10,500. The Subordinate Judge has held that the order of dismissal for default made by the Munsif on 16th June 1910, bars the trial of the controversy between the parties in his Court. We are clearly of opinion that this view cannot possibly be maintained.
2. Section 11 of the Civil Procedure Code has obviously no possible application to this case. As pointed out by Lord Watson in Chand Kour v. Partab Singh 15 I. A. 156 : 16 C. 98 : 5 Sar. P. C. J. 243 : 13 Ind. Jur. 331 : 8 Ind. Dec. (N.S) 65 no question of res judicata arises in favour of either of the litigants when a suit has been dismissed for default. It would be a contradiction in terms to, hold that the suit is barred by res judicata when admittedly the parties did not afford any opportunity to the Court to pronounce an adjudication on the matters in controversy between them. The only effect of dismissal of a suit for default is that, a suit upon the same cause of action cannot be maintained by virtue of Section 103 of the Codes of 1877 and 1882 and Order IX, Rule 9 of the Code of 1908. This view is supported by another decision of the Judicial Committee in the case of Shankar Baksh v. Daya Shankar 15 I. A. 66 : 15 C. 482 : 5 Sar. P. C. J. 107 : 12 Ind. Jur. 132 : Rafique and Jackson's P. C. No. 100 : 7 Ind. Dec. (n. s ) 866. It is further clear that the decision of the Munsif, even if it had been pronounced on the merits could not operate as res judicata in the Court of the Subordinate Judge Shibo Raut v. Baban Raut 35 C. 353 : 12 C. W. N. 359 : 7 C. L. J. 470 and Siliman Sahib v. Bontala Haman Sahib 20 Ind Cas. 418 : 38 M. 247 : (1913) M. W. N. 554 : 25 M. L. J. 125. This point, in fact, has been placed beyond the possibility of dispute by the provisions of Section 11 of the Code of 1908. The question consequently reduces to this. Is the present suit barred by the operation of Rule 9 of Order IX? The obvious answer is that the Rule in question does not operate as a bar because this suit is not based on the cause of action which formed the foundation of the earlier litigation. Since then the plaintiff has lost possession of the property; consequently, whereas the former suit was for a declaratory decree, the present suit is for recovery of possession. We are of opinion that the grounds assigned by the Subordinate Judge in support of his view cannot be upheld.
3. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and the case remanded to him for trial on the merits. The appellant will get her costs in this Court,' as also those in the Court below which had been thrown away by reason of the order of that Court. An order will also be made in favour of the appellant under Section 13 of the Court Fees Act entitling her to obtain a refund of the Court-fee paid on the memorandum of appeal to this Court.