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Criminal Procedure Code QUESTION #9491
Question 1
A's suit against B was dismissed for default when A failed to appear on the date of hearing. A applies for restoration, which is also dismissed. A then files a fresh suit on the same cause of action claiming the earlier dismissal was not on merits. B raises the plea of res judicata. Is the second suit barred?
  • Yes; dismissal for default operates as res judicata
  • No; but A must pay the costs of the previous suit
  • Yes; two dismissals operate as constructive res judicata
  • No; an order of dismissal for default is expressly excluded from the definition of 'decree' under the CPC and does not operate as res judicata✔️
Correct Answer Explanation
Section 2(2) CPC expressly provides that a decree shall not include 'any order of dismissal for default.' Dismissal for default is not a decision on merits. Therefore, it does not operate as res judicata, and a fresh suit on the same cause of action is maintainable, subject to limitation.