(1) In April 1952 one Mohd. Daud died. On 11-8-1952, Mst. Mohd-ul-Nisa, alleging herself to be the widow of Mohd. Daud, filed a suit under Order XX, Rule 13, Civil Procedure Code, for the administration of the property left by her husband. In that suit, she claimed that Rs. 2,000/- were due to her on account of her dower debt and she also stated that she being one of the heirs of her husband was entitled to one-eight share in his property, after the payment of his debts etc. In this suit she impleaded all the other heirs of her husband, including his second widow Mst. Khadija Begum. Mst. Kalsumul-Nisa, mother of the deceased, filed a written statement denying that Mst. Mohd-ul-Nisa was the widow of the deceased. In January 1953 Mst. Mohd-ul-Nisa filed an application under Order XXIII, Rule I, Civil Procedure Code, seeking to withdraw this suit with liberty to institute a fresh suit. This application was resisted by Mst. Kalsum-ul Nisa and Mohd. Amil, one of the defendants in this suit. The suit was, however, dismissed as having been withdrawn on 21-1-1953, but no permission was given to the plaintiff to file a fresh suit.
(2) In February 1953 Mst. Kulsum-ul-Nisa died. The present suit was filed in December 1953 by Mst. Mohd-ul-Nisa for the recovery of Rs. 1,925/- Rs. 1,750/- as dower money due to her from her husband and Rs. 175/- as interest thereon. She made all the hairs of Mohd. Daud as defendants in this suit.
(3) Alla Naur, defendant, raised a preliminary objection that the Present suit was barred under the provisions of Section 11, O. II, Rule 2, and O. XXIII, Rule 1(3), Civil Procedure Code, because of the dismissal of her previous suit for administration of property left by Mohd. Daud and in which the present claim was also included by her.
(4) The Court below held that the suit was not barred under any of these provisions. It is against this order that the present revision has been filed by Alla Naur.
(5) The only contention raised by the learned counsel for the petitioner was that the Court below was in error in holding that the suit was not barred under the provisions of Order XXIII, Rule 1(3), Civil Procedure Code. He submitted that in the administration suit also, the plaintiff had claimed her dower debt. That suit having been dismissed without permission being granted to her to bring a fresh suit, she was precluded from instituting any fresh suit in respect of the same subject-matter. In this contention, he mainly relied on Devi Chand v. Pirbhu Lal, AIR 1927 All 628.
(6) The term 'subject-matter' occurring in sub-clause (3) of order XXIII, Rule I, Civil Procedure Code, has been held to mean the plaintiff's cause of action for his suit. Consequently, if a plaintiff brings a suit on a different cause of action, even though it may relate to the same property. Rule 1(3), Civil Procedure Code, despite the fact, that the first suit was withdrawn without permission to bring a fresh suit, (see in this connection All Mohammad v. Karim Bakhsh, AIR 1933 Lah 943).
The question that arises for decision in the present case is whether the second suit of the plaintiff was based on a different cause of action or not. As already mentioned above, the first suit was instituted under Order XX, Rule 13, Civil Procedure Code and the cause of action in that suit was the death of Mohd. Daud, leaving an estate which had to be administered. The cause of action in the present suit is the recovery of the dower debt, which she is entitled to realise as a creditor from the estate left by her husband. In my opinion, the two suits are different in nature and are based on different causes of action. The present suit is, consequently, not barred under O. XXIII, Rule 1(3), Civil Procedure Code.
(7) The authority relied upon by the learned counsel for the petitioner lays down that O. XXIII, rule 1(3), Civil Procedure Code, says nothing about cause of action and as such it runs counter to a number of decisions, inter alia, AIR 1933 Lah, 943.
(8) In view of what I have said above, this petition fails and is, consequently, dismissed. In the circumstances of this case, however, I would leave the parties to bear their own costs throughout.
(9) Petition dismissed.