Kulwant Rai and Another vs Shambhu Ram and Another

Teja Singh, C.J.—This revision petition by the defendants arises out of a suit for a declarations that the site in dispute belonged to them (plffs.?) & the defendants had no right to interfere with their possession. They alleged that they bought the site from Arjan Mai Defendant 2 who with its original owner and since then they had been in possession. The contesting defendants denied the Plaintiff''s title and possession and pleaded that they had been in adverse possession of the site for more than 12 years. They also contended that because the Plaintiffs had previously brought a similar suit for declaration and had withdrawn it without obtaining the permission of the Court for bringing a fresh suit, they were debarred from maintaining the present action. The trial Court held that the Plaintiffs were the owners of the site and overruling the defendants'' pleas granted them the decree prayed for. The defendants appealed to the District Judge but failed. Hence they have filed this revision petition.

The only question upon which arguments-have been addressed before me is whether the present suit was barred by the provision of Order 23 Rule 1 (3). The facts of the previous case are as follows:

In Katik 2001 Samvat which corresponds to November 1944, Arjan Mal applied to a Magistrate for proceedings u/s 145 Cr. P.C. against Kulwant Rai and another who are contesting defendants in the present case. The Magistrate dismissed his application and directed him to seek his remedy in a civil Court. On this Arjan Mal brought a suit for possession of the site in the Panchait and obtained a decree on 4-2-2004 (17-5-47). On 9-2-2004 Arjan Mal applied for execution of the decree but on the application of the contesting defendants the execution proceedings were stayed. Afterwards Arjan Mai sold the site to the present Plaintiffs. On 27-6-2004 corresponding to 13-10-47 Arjan Mal and present Plaintiffs filed a suit for declaration against the present defendants that they were the owners of the site in Question and the defendants had no concern with it. The allegations that they made in the plaint were that Arfan was the owner of the site though the defendants had taken it from him for use that Arjan brought a suit for possession in the Panchait and after his claim had been decreed, he obtained possession and that Arjan had sold the site to the other Plaintiffs. As regards the suit it was stated in the plaint that it was being instituted because of the application made by the contesting defendants to the Panchait under Sections 34 and 35. (Evidently they meant Sections 37 and 38 of the Panchait Act, 2000).

After the suit had been going on for some time i.e. on 26-8-2004 corresponding to 11-12-1947 the present Plaintiffs applied for permission to withdraw from the suit on the plea that since they had obtained possession of the site they did not consider it necessary to go on with the suit or to obtain a relief from the Court. A notice of the application was given to the contesting defendants and their counsel made a statement that he had no objection to the Plaintiffs'' withdrawing from the suit under Order 23 Rule 1, but urged that his clients should be given their costs. The concluding words of the court''s order are: "The Plaintiff is allowed to withdraw the case under the said provision. The case be filed." On 1-9-2004 the present contesting defendants sued the present Plaintiffs for possession of the site u/s 9 Specific Relief Act on the allegation that they had been forcibly dispossessed of the site within six months of the date of the suit. The trial Court dismissed the suit but a learned Judge of this Court set aside the trial Court''s order in revision and granted the said defendants the decree for possession. It was on this that the present Plaintiff''s instituted this suit on 2-6-1950.

Order 23, Rule 1 Sub-rule (1) lays down that at any time after the institution of the suit the Plaintiff may withdraw the suit or abandon part of his claim. Sub-rule (2) is to the effect that where the Court is satisfied that a suit must fail by reason of some formal defect or that there are some other grounds for allowing the Plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may on such terms as it thinks fit, grant the Plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim. The following are the words of Sub-rule (3):

Where the Plaintiff'' withdraws from a suit, or abandons part of a claim without the permission referred to in Sub-rule (2) he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

In the present case the Plaintiffs did apply for permission to withdraw from the first suit and the same was granted, but it was not stated in the order that they were at liberty to institute a fresh suit in respect of the subject-matter of the suit For this reason the contesting defendants maintained that the present suit was hit by Sub-rule (3). It was urged on behalf of the respondents that Sub-rule (3) had no applicability because the subject-matter of the present suit was different from that of the wevious.

The decision of the case must, therefore, rest upon the interpretation of the term "subject-matter". No definition of the term is given in the Code nor have the parties'' counsel produced any authority in which it has been exhaustively defined. In the Code of 1882 the word used in Section 373, of which Rule 1 of Order 23 of the present Code has taken place, was "matter" and it was held in a large number of cases that "matter" did not mean property but the right in property. It should be presumed that when the new Code was enacted in 1908 the Legislature was aware of the manner in which the word "matter" used in Section 373 of the old Code had been interpreted and it was not without significance that they changed it into "subject-matter". Probably it was thought that "subject-matter" was more definite than "matter" and less difficulty would be felt in interpreting it. The view taken in majority of cases decided under the new Code is that the subject-matter of two suits is the same when they are based on the same cause of action and the relief prayed for in them is also the same.

A different view was taken by Mr. Justice Rattigan in -''Jita Singh v. Hari Singh'' 97 Pun Re. 1916, but this case was overruled in - ''Ali Mohd. v. Karim Bakhsh'' AIR 1933 Lah 943. Both the suits arose out of an alienation made by a widow and the Plaintiffs were the reversioners of the widow. In the first suit they claimed a declaration that the alienation was not binding upon them and should not affect their right to succeed to the estate after the widow''s death. The widow died during the pendency of the suit & the Plaintiffs thereupon made an application to the Court that they did not wish to proceed with the suit for declaration and intended to bring an action for possession. The suit for declaration was accordingly withdrawn but no permission for the withdrawal thereof with permission to bring fresh suit was either asked for or granted. Subsequently the Plaintiffs brought a suit for recovery of possession of the estate left by the widow praying at the same time that the alienation mentioned above be declared to be invalid.

It was held that the causes of action in the two suits were quite different and consequently the subject-matter in the two suits could not be identical and that the withdrawal of the former suit without permission to bring a fresh suit did not operate as bar to the institution of the latter suit. One of the cases relied upon by the learned Judges was a Full Bench decision of the Madras High Court, - ''Pandillapalli Singha Reddi v. Subba Reddi'' 39 Mad 987. The facts of that case were similar to those of - ''Ali Mohd''s case''. It was held that where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit the second suit cannot be considered to have been brought in respect of the same subject-matter as the first suit and the Plaintiff in the second suit is not debarred from contesting the allegations made by the defence in the first suit.

The other case in point is - Bhagaban Das Mahesri Vs. Prosanna Dev Raikot and Others, In that case a previous suit against tenants-at-will had been withdrawn without permission to bring a fresh suit because no notice had been served upon some of the defendants though notice had been given to the person whose heirs they were and who had died before the institution of the suit. The subsequent suit for the same relief wast instituted after proper notice had been given to all the defendants. It was held that the second suit was not barred under Order 23, Rule 1(3). The learned Judges approvingly cited - ''Kamini Kanta v. Ram Nath'' 21 Cal 265 and - ''Achuta Menon v. Achutan Nayer'' 21 Mad 35 and observed that "In spite of the substitution of the term "subject-matter" in the new Code in place of "matter" used in the old Code the law practically remained the same as it was under the old Code and the subject-matter or matter did not mean property.

In- Bhondu Vs. Ch. Raj Singh, it was held that

Subject-matter in Order 23, Rule 1 (3) is not the same thing as property and it means the series of acts or transactions alleged to exist giving rise to the relief claimed and it has reference to the right which the Plaintiff seeks to enforce.

The learned Judges observed: "It is more correct to think of it in terms of title and causes of action."

The Petitioners'' counsel relied upon - ''Karam Chand v. Uma Dutt Hans Raj'' AIR. 1930 Lah 755. I do not think this case is of any help to the Petitioners. A shop and certain other properties belonging to the Plaintiff were attached and sold in execution of a decree. The first suit was for a declaration that the properties, including the shop, belonged to him and the attachment as well as the auction sale were null and void. Later on this suit was withdrawn without permission under Clause (2) of Rule 1 of Order 23, to institute a fresh suit in respect of the same subject-matter. Then the Plaintiff brought the second suit. This was also for a declaration that the shop and other properties could not be attached in execution of the decree and the attachment and the auction sale were null and void. The only difference between the first suit and the second suit was that whereas in the first suit the Plaintiff claimed to be the sole owner of the shop, in the second suit his allegation was that the shop belonged to him and his brothers. The second suit was held barred by virtue of Clause (3) of Order 23, Rule 1 not because the properties to which that suit related were the same but because the cause of action as well as the relief claimed in both the suits was the same. This is borne out by the following observations made by Tek Chand J. who wrote the judgment of the Division Bench:

In the previous suit the Plaintiff claimed to be the sole owner of the entire property No. 156 and urged that his right had been infringed by attachment and sale in execution of a decree to which he was not a party. In the present suit the alleged infringement of his right is exactly the same but he claims to be the owner of one-fourth share only in property No. 156 and claims a declaration of his right to that share. The foundation of the Plaintiff''s alleged title, its infringement and the resultant cause of action in each of these suits are essentially the same.

The others case relied upon by the Petitioners'' counsel is - ''Iqbal Bahadur Nigam v. Doorga Prasad Nigam'' AIR 1935 Oudh 434. Here the first suit was on the basis of a pro-note but it was withdrawn on the plea that the Defendant had executed a fresh pronote for the pronote in suit. This fact was denied by the Defendant in the first suit but since the Plaintiff withdrew from the suit the Court did not go into the question whether the allegation made by the Plaintiff regarding the cause of action of the fresh pronote was correct and dismissed the suit. No permission to bring a fresh suit on the same cause of action was granted. The second suit was based on the fresh pronote alleged to have been executed in lieu of the first pronote. It was held that the suit was barred, because in the opinion of the Court the subject-matter of both the suits, i.e. the loan-advanced on the first pronote and alleged to have been embodied in the second pronote, was the same. With all deference the view does not appear to me to be correct and is contrary to the interpretation placed upon the term ''subject-matter'' in the above-mentioned cases, which I prefer to follow.

Viewed in this light there can be no doubt that the subject-matter of the present suit was not the same as that of the first suit because the cause of action for the two suits was different. The cause of action for the first suit was that when the present Plaintiffs took out proceedings for the execution of the Panchayat decree the contesting defendants made an application u/s 37 of the Panchayat Act and on this the Plaintiffs were directed to establish their right in a Civil Court by a civil suit. Later on the Plaintiffs obtained possession of the disputed site and because they thought that it was no longer necessary for them to go on with their suit they made an application for its withdrawal. No opposition to this application was offered by the other side. The cause of action for the present suit was that the High Court decreed the contesting defendants'' suit for possession u/s 9, Specific Relief Act and the said defendants proceeded to obtain possession by execution of their decree.

In this respect the facts of the case appear to be somewhat analogous to those of - ''Mir Nasir Hussain v. Mt. Fakr Jehan'' 119 Pun Re 1881. A house had been attached and sold in execution of a decree held by Mohd. Aziz against Mir Abdulla. Mir Abdulla''s wife brought a suit against the decree-holder and the judgment-debtor alleging that she was in possession of the house as proprietor and prayed for a decree declaratory of her proprietary title. After that suit was instituted the executing Court not only refused to confirm the sale but after ordering it to be set aside directed the house to be released from attachment altogether which was accordingly done. In the circumstances the Plaintiff finding that there was nothing left for her to contend against withdrew from the suit and the same was struck off the file. No permission to institute a fresh suit for the same subject-matter was applied for u/s 97 of Act 8 of 1859 which was then in force nor was it granted. Subsequently in appeal the order of the executing Court was set aside and the sale of the house in favour of the decree-holder was upheld. On this Mir Abdulla''s wife, brought another suit for a declaration against the decree-holder and the auction-purchasers for a declaration of her title. It was contended by the defendants that the suit was barred.

The learned Judges overruled the objection with the following remarks:

The Plaintiff withdrew from the former suit because the cloud which had been cast on her title by the attachment and sale of the house had been removed by the cancellation of the sale and the withdrawal of the attachment When, however, the proceedings against the house were re-opened by the appeal & when the result of that appeal was to affirm the auction sale a fresh attack was made upon the Plaintiff''s title and a fresh cause of action accrued to her distinct from that which form-ed the basis of her former suit, in regard to which, moreover, it must be observed, than no judicial decision had been pronounced.

These remarks, in my judgment, apply to the present suit also and it must be held that the passing of the decree in the defendants'' favour in their suit for possession u/s 9, Specific Relief Act and the defendants'' effort to dispossess the present Plaintiffs constituted a fresh attack upon their title and consequently afforded them a distinct cause of action for bringing the suit.

In the result the petition fails and is dismissed with costs.