1. The petitioner herein is the original defendant and the opponent is original plaintiff. The plaintiff had filed a suit being Regular Civil Suit No. 78 of 1966, which was pending for hearing and final disposal in the Court of the learned Third Joint Civil Judge (Junior Division) at Rajkot. The averment in the plaint was that the plaintiff had entered into an agreement to purchase 12 plots of non-agricultural land of Survey No. 443 which plots were situate on Kalawad Road in Rajkot; and the defendant was the owner and was in possession of the said land. It was contended by the plaintiff that the defendant had entered into the agreement on March 27, 1964 with the plaintiff to sell 12 plots of land aggregating in all to 5280 sz. yds. out of Survey No. 443 to the plaintiff and the plaintiff had paid a sum of Rs. 4,000/- as earnest money towards that agreement to purchase. It was agreed between the parties that the plaintiff should get the conveyance of he said land executed in his favour by paying the balance of the consideration within sixty days from March 27, 1964. The price that was agreed upon between the parties was Rs.6/- per sq. yd. The conveyance was not obtained by the plaintiff within the stipulated period and according to the defendant he called upon the plaintiff to pay the balance of the consideration and to get the conveyance executed in his favour. Still, the plaintiff did not pay any heed to it. Ultimately, it appears that the defendant intimated to the plaintiff that the plaintiff had committed a breach of the agreement and that the amount of earnest money had been forfeited by the defendant. Thereafter, the plaintiff filed Regular Civil Suit No. 78 of 1966 and in that suit he prayed for a decree for declaration declaring that the agreement dated March 27, 1964 was not cancelled and the amendment in the map of June 3, 1964 was still subsisting and he also prayed for a permanent injunction restraining the defendant from transferring or alienating the land till the final disposal of the suit. In that suit the plaintiff did not ask for specific performance of the agreement dated March 27, 1964 and he also did not allege that the defendant had committed any breach of the contract; not had he prayed for any damages in respect of the said alleged breach of the contract on the part of the defendant. Once of the contentions raised by the defendant in his written statement was that the suit was not maintainable in the form in which it was framed and one of the issues was relating to the maintainability of the suit. After the suit reached hearing and evidence was recorded, the plaintiff summoned a Clerk from the office of the Collector, Rajkot, and through him certain documents and maps were got produced in the suit they were exhibited by the learned trial Judge. On April 6,, 1967, the plaintiff submitted an application for permission to withdraw the suit with permission to file a fresh suit in respect of the same subject-matter and the contention which was urged in support of this application was that the plaintiff's suit as framed was suffering from a formal defect inasmuch as he had not asked for the relief of specific performance. The argument was that it was only when the documents and maps were produced from the office of the Collector that the plaintiff came to know that the Collector had sanctioned the plans whereas at the time when he filed the suit he had proceeded on the footing that the Collector has not sanctioned the plans. This application for withdrawal with permission to file a fresh suit in respect of the same subject-matter was resisted by the defendant. The objections of the defendant were overruled by the learned Third Joint Civil Judge (Junior Division). Rajkot and he granted the permission to the plaintiff to withdraw the suit with permission to file a fresh suit on the same cause of action and the plaintiff was directed to pay defendant's cost of the suit. It is against this order of the learned trial Judge that this Civil Revision Application has been filed by the original defendant.
2. Under Order 23. Rule 1, the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. Under sub-rule (2) of R. 1, provision is made for permission being granted by the Court in which the first suit is pending, such permission having to be obtained at the time of the withdrawal of the suit. The Court can grant the permission if it is satisfied that the suit must fail by reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of the suit or part of a claim. It is so satisfied, 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. The consequence of not granting permission is that the plaintiff is precluded from instituting any fresh suit respect of such subject-matter or such part of the claim and that is the effect of Order 23. Rule 1 (3). Some confusion seems to prevail in many subordinate courts as to the precise meaning of the words 'subject-matter' occurring in Order 23. Rule 1. In many cases. I have found that the word 'sub-matter' is treated as equivalent to cause of action and in fact in the instant case, the learned trial Judge has granted permission to institute a fresh suit in respect of the same cause of action; whereas the correct phraseology should have been in respect of 'the same subject-matter.' In Rakhmabai v. Mahadeo Narayan Bundre, ILR 42 Bom 155 = (AIR 1917 Bom 10 (1) a Division Bench of the Bombay High Court consisting of Sir Basil Scott, C.J. and Bachelor, J. held that the word 'subject-matter' means 'the series of acts or transactions alleged to exist giving rise to the relief claimed.' This interpretation of the Bombay High Court has been approved by the Supreme Court in Vallabh Das v. Dr. Madan Lal : 1SCR211 . In that case, the Supreme Court held that the expression 'subject-matter' is not defined in the Civil P.C. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject-matter of the second suit is the same as that in the previous suit. Mere identity of some of the issues in the two suits does not bring about an identity of the subject-matter in the two suits. The Supreme Court approved of the meaning which the Division Bench of the Bombay High Court put on the word 'subject-matter' in Rakhma Bai's case (supra); and proceeded to observe that in other words 'subject-matter' means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. The observations of Wallis. C.J. in Singa Reddi v. Subba Reddi. ILR 39 Mad 987 = (AIR 1917 Mad 512 (2) ) (FB) were approved by the Supreme Court and it was observed that where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject-matter as the first suit. In view of these two decisions, viz decision of the Bombay High Court which has now received approval of the Supreme Court it is clear that the subject-matter of the fresh suit which the plaintiff proposes to bring cannot be said to be the same as the subject-matter of the first suit and in any event, the defect from which the present suit of the plaintiff is alleged to have been suffering cannot be said to be a formal defect. Bhagwati. J. (As he then was) in Bai Maru v. Latifalli, (1962) 3 Guj LR 800 has pointed out that the formal defect referred to in Order 23. Rule 1 (2) can only mean a defect of form and not a defect in the merits of the case. If it is a defect of form and not a defect which affects the merits of the case then only the case would fall under the provisions of Order 23, Rule 1 (2) (a). Gajendragadkar, J. (as he the was) has pointed out in Tarachand v. Gaibihaji : AIR1956Bom632 that Cls. (a) and (b) of Order 23, Rule 1 (2) have to be read by applying the rule of 'ejusdem generis' and a cause which is sufficient within the meaning of Order 23, Rule 1 (2) (b) must be similar or alike to the cause mentioned in Order 23, Rule 1 (2) (a). Under these circumstances, even on the allegations of the plaintiff himself, it cannot be said that there was a defect of form or a similar other defect from which first suit of the plaintiff was likely to fail. It was a defect on merits, namely, about the factum of Collector's sanction having been granted or not granted which would have come in the way of the plaintiff in getting the reliefs that he had claimed. In any event. If the cause of action and the reliefs claimed in the first suit are not going to be the same as the cause of action and the reliefs claimed in the second suit, there was nothing which he had to fear and even by way of abundant caution it was not necessary for him to obtain permission which he applied for the instant cause.
3. In may opinion, the condition precedent to the exercise of the discretion vested in the trial Court by Order 23, Rule 1 (2), namely, existence of formal defect or any other defect of a like nature, is wanting in the instant case and therefore, the exercise by the court of its discretion to grant permission must be held to be a wrongful exercise of the jurisdiction vested in it by law. Under these circumstances, the order is clearly revisable under the provisions of Section 115 of the Civil P.C.
4. In the result, I allow this Civil Revision Application and set aside the order passed by the learned trial Judge by which permission was granted to the plaintiff to withdraw the suit with permission to bring a fresh suit on the same cause of action. The Rule is, therefore, made absolute with costs.
5. Revision allowed.