When two suits are not in respect of same subject matter?

The question is whether the previous suit was a suit for the same subject-matter as the present suit-within the meaning of Order XXIII, Rule 1. We are of opinion that "subject-matter" means, to use the words of Order I, Rule 1, " the series of acts or transactions alleged to exist giving rise to the relief claimed." Obviously the first series of acts or transactions which formed the basis of the first suit was incomplete, or the plaintiff would have been able to prosecute his suit to decree. It was incomplete because there was no notice to quit. The second series of acts or transactions is complete because the notice to quit has been given, and therefore, the two suits are not in respect of the same subject-matter.

Bombay High Court

Rakhmabai Piraji Sapkal vs Mahadeo Narayan Bundre on 1 November, 1917

Equivalent citations: (1918) 20 BOMLR 35, 43 Ind Cas 752

Bench: B Scott, K C.J., Batchelor

1. This is an appeal against the decision of the lower appellate Court allowing a suit to proceed and remanding it for trial to the first Court on the ground that the provisions of Order XXIII, Rule 1, are no bar to the prosecution of the suit. The material facts are that a suit was brought by the plaintiff, for the ejectment of persons who claimed to be Mirasdars or permanent tenants on the allegation that they were not Mirasdars, and that he was entitled to determine the tenancy. Finding, however, that there was no sufficient notice to quit, he withdrew the suit without obtaining the leave of the Court, and having given a formal notice to quit complying with the provisions of the law, he brought this suit for ejectment. The question is whether the previous suit was a suit for the same subject-matter as the present suit-within the meaning of Order XXIII, Rule 1. We are of opinion that "subject-matter" means, to use the words of Order I, Rule 1, " the series of acts or transactions alleged to exist giving rise to the relief claimed." Obviously the first series of acts or transactions which formed the basis of the first suit was incomplete, or the plaintiff would have been able to prosecute his suit to decree. It was incomplete because there was no notice to quit. The second series of acts or transactions is complete because the notice to quit has been given, and therefore, the two suits are not in respect of the same subject-matter.

2. The same result arises if " subject-matter" is to be taken to be " the cause of action " in the sense in which it is usually understood, namely, the bundle of facts which have to be proved in order to entitle the plaintiff to relief. In that sense the word "subject-matter" was understood by the Madras High Court in Achuta Menon v. Achutan Nayar (1897) I.L.R. 21 Mad. 35, and by Calcutta High Court in Kamini Kant Roy v. Bam Nath Chuckerbutty (1893) I.L.R. 21 Cal. 265 in cases arising under Section 373 of the Code of 1882.

3. In the first suit between the present parties there was no cause of action because notice had not been given. In the present suit there is a cause of action because notice has been given. Therefore the causes of action are not the same. We therefore affirm the order and dismiss the appeal with costs.

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