R.N. Misra, J.
1. This appeal is by the defendants 1 to 4 against the confirming decision of the learned Additional Subordinate Judge of Cuttack. The plaintiff sued for title, possession and recovery of damages.
2. The defendants 6 and 7 were the landlords. The defendant No. 1 was their Khamaroi. The disputed land belonged to the defendant No. 1. As the defendants 6 and 7 were in need of a homestead for their own Khamar the defendant No. 1 gave the disputed property to them for the said purpose about 30 years prior to the litigation. The father of the defendants 6 and 7 made certain, alterations to the standing structure and used the same as their Khamar. On 19-11-1959, the defendant No. 1 sold the property to the defendants 6 and 7 (Ext. 1) for a consideration of Rs. 1000/-. Under an amicable division the disputed portion of the property fell to the share of the defendant No. 6 and he sold 6 decimals out of it with the standing structure to the plaintiffs on 9-5-1960 under a registered sale deed (Ext. 2). There is a mistake in the sale deed and It was rectified on 16-12-1961 (Ext. 5). The defendant No. 6 also sold away 26 decimals out of the disputed property to the defendants 8 to 13 on 9-5-1960. Since then the plaintiffs and the defendants 8 to 13 were in possession of their respective acquisitions without any partition by metes and bounds. On 9-10-1960, the plaintiffs were dispossessed by the defendant No. 10 in collusion with the defendants 1 to 5. The suit was, therefore instituted for the aforesaid reliefs.
3. The defendants 1 to 5 filed one joint written statement and defendants 9 to 13 filed another joint written statement while the defendants 6 and 7 filed all separate written statement of their own. It was specifically pleaded in defence that there was a prior suit being T. S. No. 149 of 1960 by the plaintiffs for similar reliefs. Ext. B is the plaint of that suit. An amendment of the plaint was asked for on 5-1-1962. By order dated 24-1-1962 the amendment application was rejected. Thereafter the plaintiffs took no steps and on 26-2-1962 the suit was dismissed with costs and a decree was drawn up on 28-2-1962. On the basis of these allegations it was contended that the present suit was not maintainable on account of the provisions of Order 9, Rule 9. Civil P. C. Besides this contention in law many other factual contentions were raised to deny the plaintiff's title.
4. In the trial court two issues were raised being Issue No. 3 -- 'Is the suit barred by principles of res judicata under Order 2, Rule 2 and Order 23, Rule 1 Civil P. C.?' -- 'Is the suit maintainable in view of the order of dismissal passed in T. S. No. 149 of 1960 of this Court?' Both the learned Trial Judge as also the learned Appellate Judge negatived the plea of non-maintain-ability of the present suit and found the sale deed dated 19-11-1959 (Ext. 1) to be valid. They accordingly have allowed the plaintiffs a preliminary decree for partition, but have refused to grant damages.
5. In Second Appeal Mr. Mohapatra rightly confined his contention to the plea in law, namely, that the courts below have gone wrong in holding that the present suit was maintainable and was not barred under Order 9, Rule 9, Civil P. C. He contends that in the previous suit, the plaint whereof is Ext. B, and in the present suit the claim of the plaintiffs is based upon the sale deed (Ext. 1) and the common media of title is thus one and the same transaction. It may be true that the plaintiffs have made certain new allegations and have indicated, with reference to the point of time, a new cause of action, but to find out 'whether it is barred under Order 9, Rule 9. Civil P. C. what is necessary to be considered is whether in substance it is the same cause of action.
6. The term 'same cause of 'action' occurs in Order 2. Rule 2 as also Order 9. Rule 9, Civil P. C. Order 9, Rule 9 provides:--
(1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action .....'
There is no dispute that T. S. No. 149 of 1960 was dismissed under Rule 8. There is also no dispute at the Bar that if the previous suit and the present suit are based upon the same cause of action the present suit would not be maintainable. But while Mr. Mohapatra for the appellants contends that it is the same cause of action Mr. Pal vehemently opposes the contention and says that the causes of action are absolutely different.
7. Sir Madhavan Nair speaking for the Board in AIR 1949 PC 78, (Md. Khalil Khan v. Mahbub Ali Mian), on examination of several decisions ultimately stated:--
'The principles laid down in the tases thus far discussed may be thus Summarised:--
(1) The correct test in cases falling under Order 2, Rule 2, is 'whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former 'suit.'
(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment.
(3) If the evidence to support the two claims is different, then the causes of action are also different.
(4) The causes of action in the two suits may be considered to be the same if in substance they are identical.
(5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.'
This decision of their Lordships of the Judicial Committee has received clear approval in the Supreme Court in AIR 1965 SC 295, (Suraj Rattan v. Azamabad Tea Co.). As the words 'same cause of action' occur in Order 9. Rule 9 as in Order 2, Rule 2, Civil P. C. the same meaning would normally be given. Mr. Mohapatra relying upon the fifth proposition laid down by their Lordships of the Privy Council contends that the media of title on the basis of which litigation was raised on the previous occasion and has been raised in the present suit is one and the same, namely, the sale deed dated 19-11-1959 (Ext. 1) and, therefore, substantially the present suit and the previous suit must be taken to have been based on the same cause of action, though some new allegations have been made and a new cause of action has also been indicated. If the suit is essentially on the same cause of action and would thus suffer from the bar provided under the law for its maintainability, the dexterity of the draftsman of the plaint cannot take it away out of the purview of the bar and make a non-maintainable suit maintainable.
8. There is no quarrel by Mr. Pal with the proposition. He, however, contends that upon ultimate analysis of the two plaints it would clearly transpire that the cause of action is different and the two suits are not based on the same cause of action. On the previous occasion there was no claim for partition. The suit was for title, possession and injunction on the basis of the sale deed dated 9-5-1960. In the present suit apart from asking for their title they have asked for effecting partition through court of the properties purchased by them. It is alleged that on 9-10-1960 the defendant No. 10 in collusion with the defendants 1 to 5 dispossessed the plaintiffs. It is further alleged that in their sale deed of 9-5-1960 there were certain defects particularly about the description of the property conveyed. Therefore, there was a rectification deed on 16-12-1961.
9. On a scrutiny of the two plaints it is difficult to come to a conclusion that the cause of action in both the suits is substantially the same. The bar under Order 9, Rule 9, Civil P. C. has been incorporated as a matter of public policy and effect has to be given in suitable cases to the legislative intention based upon such public policy. But the principle cannot be over-emphasised or extended to govern cases where the two suits do not appear to be based upon the same cause of action. Right of litigation is being taken away under Order 9, Rule 9, Civil P. C. and, therefore, it has to be strictly construed but where the bar applies full effect has to be given to it.
10. The Judicial Committee quoted with approval Lord Waston where in delivering the judgment of the Board the Law Lord said,
'Now the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set out in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.'
The media so far as the plaintiffs are concerned must be taken to be their title deed dated 9-5-1960 and not their vendor's title deed dated 19-11-1959. To extend the meaning of 'media' used in the aforesaid decision to cover historically the anterior titles of predecessors-in-interest of the plaintiffs would not only work out hardship but on many occasions might introduce a restriction which the law never intended to impose.
11. Let us consider a case where title to a large estate may have passed under a single transaction. Subsequently the estate gets divided and a litigation in regard to a part of the property is raised wherein for the purposes of anterior title the transaction by which the estate was purchased is pleaded. That litigation gets dismissed for default under Rule 8. In regard to another parcel of land of the estate a subsequent litigation is instituted wherein for obvious purposes the self same anterior transaction by which the estate was acquired is also pleaded. Would the defence of non-maintainability of the second suit be sustained because the media is the same? To my mind the answer seems to be obviously in the negative. If the meaning of 'media' as used by their Lordships of the Privy Council is given the extended scope as contended for by Mr. Mohapatra, it would lead to serious results and would affect rights of parties and hit them hard.
In the present case the media is the title deed dated 9-5-1960 as rectified by the deed dated 16-12-1961 (Ext. 5) and not the document dated 19-11-1959 (Ext 1). Mr. Pal contended that the title deed of 9-5-1960 was defective and, therefore, a fresh document was taken. The previous suit was not contested because the document of title was found to be defective, rectification deed was taken and in the suit on the basis of the rectification deed an application for amendment was made. That was not allowed. In these special features transpiring in this case the subsequent suit must be held to be not on the same cause of action. The Courts below seem to have taken the right conclusion and in Second Appeal no interference is called for. The affirming decision of the learned Appellate Judge stands further affirmed. The appeal fails and is dismissed. As an interesting question in law was raised I do not think it proper to follow the rule of posts abiding by the event.