1. This is a defendant's appeal and arises out of a suit for possession. The facts are briefly these : On 10-10-1936, one Ghasi sold to Chaudhari Raj Singh three houses. Two of them were let out to one Narain. In 1942 Raj Singh brought a suit, Suit No. 727 of 1942, against Narain, as a tenant, and against one Bhondu, as a sub-tenant. This suit was brought for arrears of rent and for ejectment,
2. Bhondu claimed a paramount title and pleaded that he was a member of a joint Hindu family with Ghasi and the sale in favour of the plaintiff conveyed to him no title, The plea of Bhondu amounted to a denial of the plaintiff's title, with the result that it was decided that he should pay some further court-fee before he was entitled to proceed with the suit. The plaintiff, instead of making good the deficiency, prayed for permission to withdraw the suit as against Bhondu under Order 23, Rule 1, Civil P.C. The Court acceded to his prayer in the following term:
The plaintiff is allowed to withdraw the suit No. 727 of 1942 with permission to file a fresh suit against defendant 2,i.e., Bhondu, subject to payment to him of the entire costs incurred by him upto date within 30 days from that date. It is further ordered that failure to pay costs to defendant 2 shall debar the plaintiff to institute a fresh suit against him and he would be entitled to take out execution for his costs after 30 days irrespective of the plaintiff's filing or not filing a fresh suit against him.
The costs were never paid. The plaintiff instituted the present suit against Bhondu, Sheo Ram, Mt. Mathuri and Mt. Ram Dei. The relationship of these defendants will appear from the following genealogical table:
Net Ram____________|____________| |Ghasi Rati Ram|__________________________|______| | |Mt. Mathuri Sheo Ram Ram Kala|_____________________|_____________|_____________| |Mt. Mathuri Mt. Ram Del
The case of the plaintiff was that the property, in suit, fell to the share of Ghasi Ram and he was, therefore, entitled to convey it to him, under the sale deed of 10-10-1936.
3. The defence of Bhondu amounted to a denial of the plaintiff's title and a further plea that the suit could not be instituted without the payment of costs. The learned Munsif acceded to the defence and dismissed the suit on this ground, although he found, on the merits, in favour of the plaintiff.
4. The learned Second Civil Judge, on appeal, held that the subject-matter in the earlier suit was different from the one in the present suit and the causes of action in the two suits were also different. He, therefore, held that the suit could proceed, even though there was a default, on the part of the plaintiff, in complying with the order of the Court in the earlier Suit. In the result he decreed it.
5. Bhondu has come to this Court in second appeal. The learned Counsel for the appellant contends that the failure on the part of the plaintiff to comply with the order in the previous suit, operated as a bar to his claim. Order 23, Rule l, provides:
1.(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
(2) Where the Court is satisfied, (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient 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.
(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.
(4) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others.
The learned Counsel takes his stand upon (a) 'it may, on such terms as it thinks fit, grant the plaintiff permission....' (b) 'shall be precluded from instituting any fresh suit.
6. The learned Counsel for the respondent contends, in reply, that compliance with the condition is merely directory and not mandatory, inasmuch as the rule nowhere says that he shall be 'precluded from instituting any fresh suit' without complying with the terms, or payment of the costs. In the alternative, he argues that the subject-matter in the present suit is entirely different from the one in the previous suit, and the case does not, therefore, fall within the prohibition, if any, of this rule of law.
7. The first contention of the learned Counsel is not entirely devoid of merit, but he is, to my mind, on surer ground in his other contention. Subject-matter is not the same thing as property. It is more correct to think it in terms of title and causes of action. In other words, it has reference to the right which the plaintiff seeks to enforce. In Rukhmabai v. Mahadeo Narayan 4 A.I.R. 1917 Bom. 10, Sir Basil Scott, the Chief Justice, observes:
We are of opinion that 'subject-matter' means, to use the words of Order 1, Rule 1, 'the series of acts or transactions alleged to exist giving rise to the relief claimed'.
This case was followed in Chenchuram Naidu v. Mahomed Bahavuddin 20 A.I.R. 1933 Mad. 3 and Bhagaban Das v. Prosanna Dev : AIR1934Cal433 . The leading case of this Court is that of Murti v. Bhola Ram ('94) 16 All. 165 (F.B.), which was further explained in Muhammad Umar Khan v. Amtul Rahim Bubi 10 A.I.R. 1923 All. 311. At p. 268, the learned Judges observe:
In the Full Bench case in Murti v. Bhola Ram ('94) 16 All. 165 (F.B.), the plaintiff's cause of action is defined as consisting of every fact which it would be necessary for the plaintiff to, prove if traversed in order to support his right to the, judgment of the Court. The same criterion was adopted in the more recent Bombay case inSonu v. Bahinibai 3 A.I.R. 1916 Bom. 310, in which it was added, that one test which is valuable in considering whether the causes of action are identical is whether the evidence which would suffice to enable the plaintiff to obtain a decree in both suits is the same.
Judged by this test, it cannot be said that the cause of action in the earlier suit was the same as the cause of action in the present suit. In the earlier suit Narain, as a tenant, could not derogate from the title of his own grantor; Bhondu as a sub-tenant could do nothing better. 'All that the plaintiff wag called upon to do, before ho was entitled to a decree, was to prove the tenancy. In the present case, he cannot obtain a decree, unless he proves that Ghasi was the sole owner of the property sold by him in 1936. It is, therefore, obvious that there is nothing in common between the present case and the earlier one and it cannot be said that : 'The evidence which would suffice to enable the plaintiff to obtain a decree in both suits is the same.
8. Bhondu had no place in the earlier litigation. It was clearly a case of misjoinder of parties and causes of action. After the pronouncement of their Lordships of the Judicial Committee in Radha Kunwar v. Reoti Singh 3 A.I.R. 1916 P.C. 18 and of this Court in Gobardhan v. Manna Lal 5 A.I.R. 1918 All. 81 and Mt. Rasoolan Bibi v. Mt. Ram Kuar : AIR1935All205 , it is too late in the day to challenge this proposition,
9. The learned Counsel for the appellant, however, argues that the plaintiff himself chose to implead both Narain and Bhondu and must take the consequences of his own conduct and it is not open to him to circumvent the effect of the conditional order passed by the Court when it allowed him to withdraw the suit.
10. Apart from the fact that the causes of action and the subject-matters in the two suits were entirely different, this argument loses sight of the fact that it was the duty of the Court to put the plaintiff to election. It should not have called upon him to make good the deficiency in the court-fee, occasioned by the denial by Bhondu of the plaintiffs' title. It shows, if anything, that the Court did not appreciate the true legal position. Instead of asking the plaintiff to make good the deficiency, it should have called upon him to exercise his option whether he wanted to proceed with the suit against both and run the risk of its dismissal, or proceed only against Narain. This Court has, in Shyam Behari v. Maha Prasad : AIR1930All180 , defined the duty of the Court in a case of multifariousness. Say the learned Judges at page 108:
Upon the finding that there is a defect of multi-fariousness in the suits, the learned Judge should put, the plaintiff upon their election or strike out a particular party from the array of defendants and proceed with the trial of the appeal upon all questions of law and fact, which are raised before him.
The present is, if possible, a stronger case. It was the case of a party that did not fit in with in the framework of the suit. I am, therefore, of opinion that the present suit is not barred, in any view of the law. No other point has been argued. This appeal fails and is dismissed with costs.