1. These two Second Appeals are connected and raise a common question of law, and hence are being disposed of by a common judgment. Both the suits as now framed are for declaration of title and recovery of possession of two buildings (shop building) with arrears of rent. The plaintiff had filed O. S. No. 26 of 1972 and O. S. No. 27 of 1972 for recovery of possession with arrears of rent. Since those suits were not preceded by a proper notice to quit under Section 106 of the T. P. Act, the plaintiff filed an application for permission to withdraw the suits. The trial court granted permission to withdraw the suits on payment of costs. The plaintiff did not pay the costs and therefore, the suits were dismissed for default. The present suits were subsequently filed after issuing proper notices under Section 106 of the T. P. Act with the new prayer for declaration of title and for recovery of possession with arrears of rent. The main contention raised before me is whether the suits are barred under Order 23, Rule 1 (3) and Section 11 of the Civil P. C. The courts below held against the defendant on this plea and decreed the suits as prayed for. Hence these appeals.
2. The contention that the suits are barred under Section 11, Civil P. C. is intimately connected with the plea under Order 23, Rule 1 (3). The suits were not decided on merits. Section 11, Civil P. C. postulates the adjudication of an earlier suit on merits. The two suits were dismissed for default. The suits were dismissed solely on the ground that costs directed was not paid. Therefore the question that falls for consideration mainly is whether the suits are barred under Order 23, Rule 1 (3).
3. Under Order 23, Rule 1 (3) where the court is satisfied that a suit must fail by reason of same formal defect or that there are 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 with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. The Court can under Order XXIII, Rule 1 (4) award such costs as it thinks fit. In such cases where the plaintiff abandons any suit or part of claim or withdraws from a suit without the permission of the Court, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The question posed is, whether the plaintiff who fails to deposit costs awarded and allows the suit to be dismissed, is precluded from instituting any suit thereafter. In other words, what is the limitation imposed by Order XXIII, Rule 1 (4) on the right of the plaintiff to file a fresh suit. For a proper adjudication of the points at issue, it is necessary to correctly understand the meaning of the expression 'subject-matter' used in Order XXIII, Rule 1 (3) and (4).
4. In this case it is admitted that the earlier suits, O. S. No. 26 of 1972 and O. S. No. 27 of 1972, were filed without a proper notice under Section 106 of the T. P. Act. A suit not preceded by such a notice has necessarily to fail for this technical defect. The question is when a suit is dismissed for default or when a suit is withdrawn without the permission of the Court, or where costs awarded for withdrawal were not paid, whether the plaintiff is precluded forever from instituting a fresh suit. For this, the exact nature of the earlier suit, its cause of action and the subject-matter will have to be properly scrutinised before applying the bar under Order XXIII, Rule 1 (3) and (4).
5. The earlier suits were for recovery of possession and for arrears of rent. They were filed without a proper notice to quit. Evidently, therefore, the plaintiff did not have a proper cause of action in those suits. The present suit is filed after the issuance of a notice to quit. By issuing this notice the plaintiff gets a cause of action to file the suit. The subject-matter of the earlier suit in the absence of a notice to quit is different from the subject-matter of the present suit with a notice to quit. The frame of the suit also is different. The present suits were filed for declaration of title and recovery of possession with arrears of tent. If in the earlier suits the technical defect of want of notice was not present, then, a subsequent suit for the same relief will be clearly barred both under Section 11, Civil P. C. and under Order 23, Rule 1 (3). But in this case there is a difference in the causes of action and the subject-matter. To say that a landlord who files a defective suit and withdraws it without permission of Court or allows it to be dismissed for default, is permanently barred from instituting a fresh suit after correcting the defect, is to render owners of property at the mercy of the tenants and to class the latter in an impregnable position. If that be the law, the tenants can successfully keep the landlords at ransom and cling on to the property without the fear or risk of exposing themselves for an action for ejectment. The sole criterion in deciding the maintainability of subsequent suits is to find out whether the causes of action and the subject-matter in the two suits are the same. I have no hesitation to hold that in the present suits filed after a proper notice to quit, causes of action are different from the earlier suits. The earlier suits were for recovery of possession with arrears of rent. The plaintiff has designedly framed the present suit for declaration of title and recovery of possession. The subject-matter therefore also is different. Even without this, the subject-matter is different because the suit is after curing the defect for want of notice to quit.
6. Support for this position can be had from two Division Bench rulings, one of the Madras High Court reported in Chenchuram Naidu v. Md. Bahavuddin (AIR 1933 Mad 3) and the other of the Calcutta High Court reported in Bhagaban Das v. Prosanna Dev (AIR 1934 Cal 433). In both the cases the facts are more or less the same as the case on hand. In Chenchuram Naidu v. Md. Bahavuddin (AIR 1933 Mad 3) the plaintiff filed a suit for ejectment against the defendants. 1st defendant was the tenant. The second defendant also was impleaded. Thereafter the plaintiff withdrew the suit without obtaining liberty to file a fresh suit against the defendants as there was no notice to quit. Subsequently the plaintiff filed a suit against the defendants for ejectment from which the matter came up before the Madras High Court. In this judgment the Division Bench referred to an earlier Bombay case in Rakhmabai Piraji v. Mahadeo Narayan (ILR 42 Bom 155) : (AIR 1917 Bom 10 (1)) where also a suit originally withdrawn for want of notice without formal consent was succeeded by another suit with notice and the same was contended to be barred by Order 23, Rule 1 (4). The Bombay High Court, Scott, C. J., speaking for the Bench referring to the expression subject-matter observed it to be:
'.....'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 ...... 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.'
Thus the subject-matter in the earlier suit and the subsequent suit were not the same. This observation was noted with approval by the Madras High Court and it was held that the intention of Order 23, Rule 1 could never be to imperil the rights of landlord to file suits for ejectment for the reason that an earlier suit for ejectment was allowed to be dismissed or withdrawn without permission on account of a technical fault. To hold otherwise would be to render the owner of the property never thereafter to eject the tenant from his premises. To the same effect is the judgment reported in Bhagaban Das v. Prosanna Dev (AIR 1934 Cal 433). In that case the earlier suit was instituted with notice on all the defendants except the heirs of one defendant who was served with notice but also died before the suit was instituted. When this defect was noted the plaintiff filed an application for withdrawal of the suit. The said application was allowed on condition that the plaintiff paid costs mentioned in the order. The plaintiff did not deposit the current amount. For this defect the permission granted was withdrawn and the suit was dismissed. Thereafter the plaintiff filed a suit again with notice to all the defendants including the legal representatives of the deceased defendant. The trial court dismissed the suit upholding the plea under Section 11, Civil P. C. and Order 23, Rule 1. The Subordinate Judge disagreed with the trial court. In appeal the Calcutta High Court held with approval what Scott, C. J. observed in Rakhma-bai Piraji v. Mahadeo Narayan (AIR 1917 Bom 10 (1) : ILR 42 Bom 155) which has been referred to above. It was held that the first suit which was withdrawan since the notice which had been served was defective, the cause of action therein was incomplete. The plea of bar under Order 23, Rule 1 (3) was therefore negatived.
7. I am in full agreement, with great respect, with the principles enunciated in the above cases. The question of law, according to me, is clear. To non-suit the plaintiff who filed the second suit, it is necessary for the defendant to establish that the causes of action and the subject-matter in the suits are the same. The causes of action in the earlier suits were incomplete for want of notice to quit. The defect of incompleteness of cause of action was cured by issuing a notice in the present suits. The causes of action and the subject-matter in the suits are thus different. Hence the suits are maintainable.
For the foregoing reasons I hold that the Second Appeals have to fail and are dismissed. The parties will bear their respective costs.