Page No.# 1/5 GAHC010075572026 2026:GAU-AS:5873 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/140/2026 ASHOK KUMAR SHARMA SON OF LATE LAXMAN PRASAD SHARMA, RESIDENT OF WARD NO. 10, NAHARKATIA, P.O. AND P.S.-NAHARKATIA, DISTRICT- DIBRUGARH, ASSAM. VERSUS KEDAR SAH SON OF LATE SADHU SAH, RESIDENT OF WARD NO. 10, NAHARKATIA, DISTRICT- DIBRUGARH, ASSAM, PIN -786610. Advocate for the Petitioner : MR. B K DAS, MR H P GUWALA,H P NEOG,MR G JALAN Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 29.04.2026 Heard Mr. B. K. Das, learned counsel for the petitioner. 2. The issue to be decided by this Court in this petition, under Article 227 of the Constitution of India, is - whether, the principle of res-judicata will apply in a case of setting aside of an order deciding to proceed ex- Page No.# 2/5 parte on the basis of an application filed under Order IX Rule 7 CPC, against the defendant, while earlier petition under Order IX Rule 13 CPC was dismissed being filed not under appropriate provision of law. 3. It is well settled that Res Judicata, under Section 11 of the CPC, requires a prior final adjudication on merit by a competent Court. The principle of Res Judicata bars subsequent application, only if the first one rejected, involves merited application, but it would not apply in case of technical dismissal. 4. It is a fact that a prior ex-parte decree can itself bind a later suit, if final and on merit; but not an application to vacate it. In the case of Arjun Singh vs Mohindra Kumar & Ors reported in AIR 1964 SC 993; the Hon’ble Supreme Court has held under Order 9 Rule 7 CPC, setting aside an ex-parte hearing order does not operate as res-judicata, for an application under Order 9 Rule 13 CPC, to set aside an ex-parte decree. Order 9 Rule 7 CPC addresses interlocutory non appearance at an adjourned hearing and does not finally decide merit, allowing fresh consideration under Rule 13 CPC. 5. Adverting to the facts herein this case, it appears that the petitioner herein, as plaintiff, has filed a title suit, being T.S. No. 17/2024, before the learned Civil Judge (Jr. Div.), Naharkatia, seeking a decree of ejectment and for recovery of arrear rent, permanent injunction, confirmation and recovery of possession of the suit land. 5.1. The respondent herein, as defendant, has filed written statement, on 20.02.2025 and thereafter, he failed to appear before the learned Trial Court on 29.11.2025 and 06.12.2025; for which, vide order, dated Page No.# 3/5 06.12.2025, the learned Trial Court has decided to proceed ex-parte against the respondent/defendant. 5.2. Thereafter, the respondent herein had filed a petition, being Petition No. 48/2026, on 22.01.2026, under Order IX Rule 13 CPC, for setting aside the ex-parte order, dated 06.12.2025, on the ground that due to bonafide reason, the respondent failed to appear before the learned Trial Court on the previous occasion. Then the learned Trial Court, vide order, dated 07.02.2026, has dismissed the petition, on the ground that the respondent herein has failed to justify the reason for non-appearance and the ground given is vague and speculative and the petition was filed under Order IX Rule 13 CPC and the said provision is not applicable and thereafter, dismissed the petition. 5.3. Thereafter, on 07.02.2026, the respondent had filed a separate petition, being Petition No. 83/2026, apparently, under Order IX Rule 7 CPC. Then hearing both the parties, the learned Trial Court has allowed the petition and vacated the order by which it was decided to proceed ex-parte against the him. 6. The primary contention of Mr. Das, learned counsel for the petitioner is that after dismissal of the first application vide order, dated 07.02.2026, the learned Trial Court ought not to have allowed the subsequent petition, being Petition No. 83/2026; and that the principle of Res Judicata will apply in the present case. 6.1. Mr. Das further submits that it is well settled in the decision of the Hon’ble Supreme Court, in the case of Y. B. Patel and Others Vs. Y. L. Patel, reported in (1976) 4SCC 66, wherein, it is held that – Page No.# 4/5 “….. the principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding.” 6.2. Mr. Das also submits that the learned Trial Court has also not considered imposing of any cost to the petitioners herein, while allowing the petition for vacating the ex-parte order and as such, the equity remained un-balanced in this matter and on such count, the impugned order is liable to be interfered with. 7. The contention of the petitioner in this petition and also the submission of Mr. Das, his counsel; while considered in the light of the decision of the Hon’ble Supreme Court, in the case of Arjun Singh (Supra), this Court is of the considered view that the principle of res- judicata does not apply in this matter. It is well settled that an order under Order IX Rule 7 (setting aside an order to proceed ex-parte, or refusing to do so) is interlocutory/procedural in nature. It does not finally decide the rights of the parties or constitute a "judgment" that attracts the bar of res-judicata. Res judicata applies to final judgments that conclusively determine the rights of the parties. Since Order IX Rule 7 and Rule 13 decisions are not final, they do not invoke res judicata. 8. There is no dispute about the proposition of law laid down by the Hon’ble Supreme Court, in the case of Y. B. Patel and Others (Supra), but, the said principle would apply only when the order, so passed is a final order. In the instant case, the order was an interlocutory Page No.# 5/5 order. 9. Further, the earlier order was passed, pursuant to an application filed by the respondent under Order 9 Rule 13 and the same was dismissed, vide order, dated 07.02.2026, being the said provision not applicable and the subsequent petition was filed under Order 9 Rule 7, and on this count also, the order, dated 07.02.2026, would not operate as res-judicata in the subsequent order, dated 07.03.2026. 10. It is well settled that the power, so exercised by the learned Trial Court in vacating the ex-parte order is discretionary in nature and while exercising the discretion, the learned Trial Court has vacated the ex-parte order; having found the ground assigned for the same sufficient, and this Court, in exercising the jurisdiction under Article 227 of the Constitution of India, cannot substitute its own view with that of the learned Trial Court, which was passed in applying the discretion. 11. Under the given facts and circumstances, this Court finds that no case for interference of the impugned order is made out in this case and accordingly, this petition stands dismissed in its motion stage itself, leaving the party to bear its own costs. JUDGE Comparing Assistant