KURJI JINABHAI KOTECHA Vs. AMBALAL KANJIBHAI PATEL

JUDGEMENT

(1.) The petitioner herein is the original defendant and the opponent is original plaintiff. The plaintiff had filed a suit being Regular Civil Suit No. 78 of 1966 which was pending for hearing and final disposal in the Court of the learned Third Joint Civil Judge (Junior Division) at Rajkot. The averment in the plaint was that the plaintiff had entered into an agreement to purchase 12 plots of non agricultural land of Survey No. 443 which plots were situate on Kalawad Road in Rajkot and the defendant was the owner and was in possession of the said land. It was contended by the plaintiff that the defendant had entered into an agreement on March 27 1964 with the plaintiff to sell 12 plots of land aggregating in all to 5280 sq. yd. out of Survey No. 443 to the plaintiff and the plaintiff had paid a sum of Rs. 4 0 as earnest money towards that agreement to purchase. It was agreed between the parties that the plaintiff should get the conveyance of the said land executed in his favour by paying the balance of the consideration within sixty days from March 27 1964 The price that was agreed upon between the parties was Rs. 6/per sq. yd. The conveyance was not obtained by the plaintiff within the stipulated period and according to the defendant he called upon the plaintiff to pay the balance of the consideration and to get the conveyance executed in his favour. Still the plaintiff did not pay any heed to it. Ultimately it appears that the defendant intimated to the plaintiff that the plaintiff had committed a breach of the agreement and that the amount of earnest moneys had been forfeited by the defendant. Thereafter the plaintiff filed Regular Civil Suit No. 78 of 1966 and in that suit he prayed for a declaration that the agreement dated March 27 1964 was not cancelled and the amendment in the map of June 3 1964 was still subsisting and he also prayed for a permanent injunction restraining the defendant from transferring or alienating the land till the final disposal of the suit. In that suit the plaintiff did not ask for specific performance of the agreement dated March 27 1964 and he also did not allege that the defendant had committed any breach of the contract nor had he prayed for any damages in respect of the said alleged breach of the contract on the part of the defendant. One of the contentions raised by the defendant in his written statement was that the suit was not maintainable in the form in which it was framed and one of the issues was relating to the maintainability of the suit. After the suit reached hearing and evidence was recorded the plaintiff summoned a clerk from the office of the Collector Rajkot and through him certain documents and maps were got produced in the suit and they were exhibited by the learned trial Judge. On April 6 1967 the plaintiff submitted an application for permission to withdraw the suit with permission to file a fresh suit in respect of the same subject matter and the contention which was urged in support of this application was that the plaintiffs suit as framed was suffering from a formal defect in as much as he had not asked for the relief of specific performance. The argument was that it was only when the documents and maps were produced from the office of the Collector that the plaintiff came to know that the Collector had sanctioned the plans whereas at the time when he filed the suit he had proceeded on the footing that the Collector had not sanctioned the plans. This application for withdrawal with permission to file fresh suit in respect of the same subject matter was resisted by the defendant. The objection of the defendant were over ruled by the learned Third Joint Civil Judge (Junior Division) Rajkot and he granted the permission to the plaintiff to withdraw the suit with permission to file a fresh suit on the same cause of action and the plaintiff was directed to pay defendants cost of the suit. It is against this order of the learned trial Judge that this Civil Revision Application has been filed by the original defendant.

(2.) Under Order 23 Rule 1 the plaintiff may as against all or any of the defendants withdraw his suit or abandon part of his claim. Under sub rule (2) of Rule 1 provision is made for permission being granted by the Court in which the first suit is pending such permission having to be obtained at the time of the withdrawal Or the suit. The Court can grant the permission if it is satisfied that the suit must fail by reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit or part of a claim. If it is so satisfied 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 consequence of not granting permission is that the plaintiff is precluded from instituting any fresh suit in respect of such subject matter or such part of the claim and that is the effect of Order 23 Rule 1(3). Some confusion seems to prevail in many subordinate Courts as to the precise meaning of the word subject matter occurring in Order 23 Rule 1. In many cases I have found that the word subject matter is treated as equivalent to cause of action and in fact in the instant case the learned trial Judge has granted permission to institute a fresh suit in respect of the same cause of action whereas the correct phraseology should have been in respect of the same subject matter. In Rakhmabai v. Mahadeo Narayan Bundre Indian Law Reports XLII Bombay 155 a Division Bench of the Bombay High Court consisting of Sir Basil Scott C. J. and Batchelor J. held that the word subject matter means the series of acts or transactions alleged to exist giving rise to the relief claimed. This interpretation of the Bombay High Court has been approved by the Supreme Court in Vallabh Das v. Dr. Madan Lal and others 1970 (1) Supreme Court Cases 761. In that case the Supreme Court held that the expression s 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 which the plaintiff seeks to enforce. That expression includes that 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 that in the previous suit. Mere identity of some of the issues in the two suit does not bring about an identity of the subject matter in the two suits. The Supreme Court approved of the meaning which the Division Bench of the Bombay High Court put on the word subject matter in Rakhmabais case (supra); and proceeded to observe that 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. The observations of Wallis C. J. in Singa Reddi v. Subba Reddi I.L.R. 39 Madras 987 were approved by the Supreme Court and it was observed that where the cause of action and the relief claimed in the second suit are not the same as the case of action and the relief claimed in the fir suit the second suit cannot be considered to have been brought in respect of the same subject matter as the first suit. In view of these two decisions viz. decision of the Bombay High Court which has now received approval of the Supreme Court it is clear that the subject matter of the fresh suit which the plaintiff proposes to being cannot be said to be the same as the subject matter of the first suit and in any event the defect from which the present suit of the plaintiff is alleged to have been suffering cannot be said to be a formal defect. Bhagwati J. (as he then was) in Bai Maru v. Latifalli Ill G L.R. 800 has pointed out that the formal defect referred to in Order 23 Rule 1(2) can only mean a defect of form and not a defect in the merits of the case. If it is a defect of form and not a defect which affects the merits of the case then only the case would fall under the provisions of Order 23. Rule 1(2)(a). Gajendragadkar J. (as he then was) has pointed out in Tarachand v. Gaibihaji A.I.R. 1956 Bombay 632 that clauses (a) and (b) of Order 23 Rule 1(2) have to be read by applying the rule of ejusdem genesis and a cause which is sufficient within the meaning of Order 23 Rule 1(2)(b) must be similar or alike to the cause mentioned in Order 23 Rule 1(2)(a)

(3.) Under these circumstances even on the allegations of the plaintiff himself it cannot be said that there was a defect of form or a similar other defect from which the first suit of the plaintiff was likely to fail. It was a defect on merits namely about the factum of Collectors sanction having been granted or not granted which would have come in the way of the plaintiff in getting the reliefs that he had claimed. In any event if the cause of action and the reliefs claimed in the first suit wire not going to be the same as the cause of action and the reliefs claimed in the second suit there was nothing which he had to fear and even by way of abundant caution it was not necessary for him to obtain permission which he applied for in the instant case.