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PETITIONER: VALLABH DAS

       Vs.

RESPONDENT: DR.  MADAN LAL & ORS.

DATE OF JUDGMENT: 02/04/1970

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SHAH, J.C.

CITATION:  1970 AIR  987            1971 SCR  (1) 211  1970 SCC  (3)  92  CITATOR INFO :  RF         1983 SC 786  (9)

ACT: Code  of  Civil  Procedure (Act 5 of 1908),  O.  23,  R.  1- Withdrawal of suit by plaintiff-court imposing condition for filing  fresh  suit on the  same  subject-matter-Meaning  of subject-matter’.

HEADNOTE: P was the owner of the suit properties.  He had no children. He  gifted  some of his properties to his wife on  June  14, 1943.  On April 29, 1946 the first ’respondent instituted  a suit for a declaration that he was the adopted son of P  and for  partition  and possession of his share  in  the  family property.  The first respondent claimed to have been adopted on  July  12, 1943, P denied the said adoption  and  alleged that in fact he had adopted the appellant on April 10, 1946. In  view  of that allegation the appellant was  added  as  a supplemental  defendant in the said suit, but no relief  was claimed  against  him.  During the pendency of that  suit  P died.   Thereafter the first respondent moved the  court  to withdraw  the suit.  He was permitted to withdraw the  ’same with  liberty  to  file a fresh suit on the  same  cause  of action  on condition that he paid the defendants’  costs  of that  suit before instituting a fresh suit.  Thereafter  P’s widow bequeathed her properties to the first respondent  and died soon after.  On November 29, 1951 the first  respondent brought  a fresh suit without having paid the costs  of  the appellant  in the earlier suit.. The appellant resisted  the suit  on several grounds.  However the trial court  and  the High  Court  decided  in favour  of  the  first  respondent. Thereupon  by special leave the present appeal was filed  by the   appellant.    The   main  question   that   fell   for consideration   was  whether  the  suit  under  appeal   was maintainable  when  the condition precedent imposed  by  the court in the earlier suit-namely, the payment of defendants’ costs  by the plaintiff before bringing a fresh suit on  the same cause of action-had not been complied with. HELD  : (i) Rule 1, 0. 23, Code of Civil Procedure  empowers the  courts to permit a plaintiff to withdraw from the  suit brought  by  him with liberty to institute a fresh  suit  in

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respect of the subject-matter of that suit on such terms  as it  thinks  fit.   The expression  ’subject-matter’  is  not defined  in  the  Code.  It does not  mean  property.   That expression has a reference to a right in the property  which the  plaintiff seeks to enforce.  That  expression  includes the  cause  of action and the relief  claimed.   Unless  the cause  of action and the relief claimed in the  second  suit are the same as in the first suit it cannot be said that the subject-matter  of  the second suit is the same  as  in  the previous suit. [213 G-214 B] (ii) The  non-fulfilment  of the condition  imposed  by  the Court  at the time of withdrawal of the first suit did  not bar  the present suit because the subject-matter of the  two suits was not the same. In  the  first  suit the first  respondent  was  seeking  to enforce his right to partition and separate possession.   In the  present  suit he sought to get possession of  the  suit properties from a trespasser on the basis of his, title.  In the  first  suit  the cause of action was  the  division  of status between the first respondent and his adoptive  father and   the  relief  claimed  was  the  conversion  of   joint possession  into separate possession.  In the  present  suit the plaintiff was seeking possession of the suit properties from a trespasser 212 In  the first case his cause of action arose on the  day  he got  separated  from his family.  In the  present  suit  the cause  of action, namely, the series of  transactions  which formed  the basis of the title to the suit properties  arose on the death of his adoptive father and mother. [214 B-D] Mere identity of some of the issues in the two suits did not bring  about  an identity of the subject matter in  the  two suits. [214 D-E] The appeal must accordingly be dismissed. Rakhma Bai v. Mahadeo Narayan, I.L.R. 42 Bom. 1155 and Singa Reddy  v.  Subba  Reddy, I.L.R. 39 Mad.  987,  approved  and applied.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 615 of 1966. Appeal  by special leave from the judgment and decree  dated June,  25,  1962 of the Bombay High Court, Nagpur  Bench  in Appeal No. 191 of 1956 from original Decree,. B.   R. L. Iyengar, S. K. Mehta, for the appellant. S.   N.  Kherdekar, G. L. Sanghi and A. G. Ratnaparkhi,  for respondent No. 1. The Judgment of the Court was delivered by Hegde,  J.  One Prem Sukh was the owner of  the  suite  pro- perties.   Parvatibai  was his wife They  had  no  children. Prem Sukh gifted some of his properties to his wife on  June 14,  1943.  Dr. Madan Lal’s (1st respondent in this  appeal) case  is  that  Prem  Sukh adopted him  on  July  12,  1943. Thereafter  it is said that Prem Sukh adopted on  April  10, 1946,  the  appellant Vallabh Das.  On April 29,  1946,  Dr. Madan Lal instituted a suit for a declaration that he is the adopted son of Prem Sukh and for partition and possession of his  share in the family properties.  Prem Sukh  denied  the adoption  pleaded by Dr. Madan Lal.  On   the other hand  he alleged  that Vallabh Das was his adopted son.  In  view  of that  allegation,  Vallabh Das was added as  a  supplemental defendant in that suit.  No relief was claimed against  him. During the pendency of that suit Prem Sukh died.  Thereafter Dr. Madan Lal moved the court to withdraw the suit.  He  was

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permitted to withdraw the same with liberty to file a  fresh suit  on the same cause of action on condition that he  pays the  defendants’  costs of that suit  before  instituting  a fresh suit.  Thereafter Parvatibai bequeathed her properties to  Dr. Madan Lal and died soon after.  The suit from  which this  appeal  arises was brought on November 29,  1951  even before  the costs of Vallabh Das (the appellant  herein)  in the  previous suit had been paid.  Vallabh Das resisted  the suit  on various grounds.  He contended that Dr.  Madan  Lal was not adopted by Prem Sukh; even if he 213 had  been  adopted, that adoption was not  valid  under  the Benaras  School  of  Hindu law by  which  the  parties  were governed as Madan Lal was a married man on July 12, 1943 and lastly the suit as brought is not maintainable as Dr.  Madan Lal had not paid the costs due to him under the order in the previous suit before instituting the present suit.  Both the trial  court  as well as the High Court in  appeal  rejected every  one  of the  contentions taken by  Vallabh  Das  and decreed the suit as prayed for.  Thereafter this appeal  was brought after obtaining special leave from this Court. The factum of the adoption has been upheld both by the trial court  as well as by the High Court.  There is  evidence  to support  that  finding.   No  convincing  circumstance   was brought  to our notice requiring us to review  the  evidence over  again.  This Court ordinarily does not interfere  with concurrent  findings  of fact.  We see no  justification  to disturb  the  concurrent finding of fact arrived at  by  the trial court and the High Court. As  regards the validity of the adoption, the contention  of Vallabh Das that the adoption was invalid rests on the  plea that  on  July 12, 1943, Dr. Madan Lal was  a  married  man. This  plea has been negatived by the trial court as well  as by  the High Court.  They have come to the  conclusion  that Dr, Madan Lal was not a married man on that date and that he was  married  subsequently.   Here again there  is  no  good ground for us to interfere with the finding of fact  reached by those courts. The only contention that was seriously pressed before us  on behalf  of the appellant was that the suit under  appeal  is not  maintainable as the condition precedent imposed by  the court in the earlier suit namely the payment of  defendants’ costs  by the plaintiff before bringing a fresh suit on  the same cause of action had not been complied with.  We do  not think that this contention is well founded. Rule  1,  Order  23, Code of Civil  Procedure  empowers  the courts  to  permit  a plaintiff to withdraw  from  the  suit brought  by  him with liberty to institute a fresh  suit  in respect of the subject-matter of that suit on such terms  as it  thinks fit.  The terms imposed on the plaintiff  in  the previous  suit was that before bringing a fresh suit on  the same  cause  of  action,  he  must  pay  the  costs  of  the defendants.  Therefore we have to see whether that condition governs  the institution of the present suit.  For  deciding that  question  we have to see whether the suit  from  which this appeal arises is in respect of the same  subject-matter that  was    in  litigation  in  the,  previous  suit.   The expression  "subject-matter"  is not defined  in  the  Civil Procedure Code.  It does not mean property.  That expression has a reference to a right in the property 214 which  the  plaintiff  seeks to  enforce.   That  expression includes the cause of action and the relief claimed.  Unless the  cause  of action and the relief claimed in  the  second suit  are the same as in the first suit, it cannot  be  said

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that  the subject-matter of the second suit is the  same  as that in the previous suit.  Now coming to the case before us in  the first suit Dr. Madan Lal was seeking to enforce  his right to partition and separate possession.  In the  present suit he seeks to get possession of the suit properties  from a  trespasser on the basis of his title.  In the first  suit the  cause of action was the division of status between  Dr. Madan Lal and his adoptive father and the relief claimed was the conversion of joint possession into separate possession. In  the present suit the plaintiff is seeking possession  of the  suit properties from a trespasser.  In the  first  case his  cause of action arose on the day he got separated  from his  family.   In  the present suit  the  cause  of  action, namely, the series of transactions which formed the basis of his title to the suit properties, arose on the death of  his adoptive  father ’and mother.  It is true that both  in  the previous suit as well as in the present suit the factum  and validity of adoption of Dr. Madan Lal came up for  decision. But  that adoption was not the cause of action in the  first nor  is it the cause of action in the present suit.  It  was merely an antecedent even which conferred certain rights  on him.   Mere identity of some of the issues in the two  suits does  not bring about an identity of the subject  matter  in the  two  suits.   As  observed in  Rakhma  Bai  v.  Mahadeo Narayan(1),  the  expression "subject matter" in  Order  23, Rule 1, Code of Civil Procedure means the series of acts  or transactions  alleged  to exist giving rise  to  the  relief claimed.   In other words "subject matter" means the  bundle of  facts  which have to be proved in order to  entitle  the plaintiff  to  the  relief claimed by  him.   We  accept  as correct  the observations of Wallis C.J. in Singa  Reddi  v. Subba  Reddi(2),  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. For  the reasons mentioned above this appeal fails  and  the same is dismissed with costs. G.C.                              Appeal dismissed. (1)I.L.R. 42 Bom.1155. (2)I.L.R. 39 Mad. 987. 215