Horace Owen Compton Beasley, Kt., C.J.
1. This was a suit in ejectment. The plaintiff, the appellant here, claimed to be the owner of the suit land and entitled to eject the defendant from the superstructure on it. The learned City Civil Judge dismissed the appellant's suit. A suit had been filed in 1924 in the same Court, O.S. No. 422 of 1924, by the appellant against another person as the 1st defendant and the respondent here as the 2nd defendant to eject them. The suit was withdrawn as against the respondent here by the appellant but at the time when he withdrew the suit he did not ask for liberty to file a fresh suit against the respondent. The learned City Civil Judge held that that was a statutory bar to the filing of the suit under appeal against the respondent. Upon that ground he dismissed the suit. He also went into the merits of the case and held that the appellant failed to prove his title and upon that ground also he dismissed the suit.
2. The first thing we have got to consider here is whether the appellant was prevented from filing the suit under appeal against the respondent by reason of the fact that he withdrew his claim against the respondent in the previous suit without reserving his right to file this suit. That was a suit in which there were two defendants. The 1st defendant was a tenant paying rent to the plaintiff and the respondent was also made a party to the suit. The respondent put in a written statement in which he put the plaintiff to proof of his title and alleged that he had not been given a written notice to quit which was a fact. During the hearing of the case, the appellant withdrew his suit against the respondent thus exonerating him and proceeded with his suit against the 1st defendant. The learned City Civil Judge who tried that suit gives an account of what took place in his judgment as follows:
Plaintiff has now exonerated 2nd defendant. The suit against him is accordingly withdrawn, but liberty to litigate his right, if any, in respect of the suit house is reserved to him.
3. A separate order was passed subsequently some days afterwards and it runs as follows:
Plaintiff exonerates 2nd defendant. Suit against 2nd defendant is withdrawn. No costs. 2nd defendant's right to litigate his claim in this house, if any, is reserved to him.
4. The learned Trial Judge has construed those orders as reserving 4iberty to the 2nd defendant to litigate his claim and, indeed, that is what the latter of the two orders distinctly says. We have had the advantage also of the statement of Mr. Rafiuddin, who appeared on behalf of the 2nd defendant in that suit and represents the respondent here, who has told us that he asked that this reservation of the 2nd defendant's right should be made and it is quite obvious that it was as a result of that request that the order, to which reference has already been made, was made. We accept what Mr. Rafiuddin had told us and although it does appear to us to have been quite unnecessary to make any reservation of the 2nd defendant's right, however, we are satisfied that that right was reserved at the express request of Mr. Rafiuddin so that the learned Trial Judge's interpretation of those orders is perfectly correct and therefore there was no reservation of liberty to the appellant, the plaintiff in the suit, to file another suit against the respondent. But was such leave necessary? The question here is whether the suit under appeal was a suit for the same 'subject-matter' as the previous suit. That, of course, was a suit to eject the respondent and this suit also claims the same relief against the respondent. But it does not necessarily follow that because in an ejectment suit the claim is the same, the statutory bar under Order 23, Rule 1 is raised against the appellant. It is argued before us that the reasons why the 2nd defendant was exonerated in the earlier suit was because no written notice to quit had been given to him. On the other side it is argued that it was because of the point raised with regard to the appellant's title. It is argued that it was because he was unable to prove his title that he exonerated the respondent. One answer to that is that he proceeded with his suit against the 1st defendant and it was equally important to him to prove his title against the 1st defendant. If he had no title, he could not succeed against the 1st defendant any more than he could against the 2nd defendant. It seems to us to be much more probable that the appellant did not proceed against the respondent here, the 2nd defendant, because he had not given him notice to quit. It was no good going on with the suit against the respondent and succeeding in proving his title if the claim was bound to fail by reason of the defect that he had not given him written notice. What has to be considered here is, what is the meaning of 'subject-matter' and we derive great assistance upon this point from Rakhmabai v. Mahadeo Narayan I.L.R. (1917) 42 B. 155, which seems to us to be directly in point. That was a suit brought by the plaintiff to eject the defendant. Finding however that there was no sufficient notice to quit, he withdrew the suit without obtaining the leave of the Court. Subsequently the plaintiff having given a formal notice to quit brought a fresh suit for ejectment. The defendant contended that the withdrawal of the former suit without permission operated as a bar to the second suit under Order 23, Rule 1 of the Civil Procedure Code of 1908. It was held that the withdrawal did not operate as a bar as the previous suit was not a suit for the same subject-matter as the second suit within the meaning of Order 23, Rule 1 of the Civil Procedure Code of 1908, and that 'subject-matter' means 'the series of acts or transactions alleged to exist giving rise to the relief claimed'. Scott, C.J., at page 158 says:
The question is whether the previous suit was a suit for the same subject-matter as the present suit within the meaning of Order 23, Rule 1. 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'. 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.
5. With those observations we entirely agree. To hold otherwise would be to place a defendant, against whom an ejectment suit is launched without previously giving him the required written notice and against whom the suit is withdrawn for that reason, in an impregnable position. Never thereafter would the owner of the property be able to eject him from his premises. In fact the tenant would become the owner of the property. That never could have been the intention of Order 23, Rule 1. We, therefore, hold that, although the learned Trial Judge was right in his interpretation of his own orders, he was wrong in holding that the suit was barred by reason of the provisions of Order 23, Rule 1. We now go on to examine his other findings.
6. Examining the Lower Court's finding as regards the title of the appellant to the suit property, their Lordships came to the conclusion that he had absolute title and proceeded.
7. Under these circumstances, this appeal must be allowed with costs throughout. The further question with regard to valuation will be dealt with in the trial Court.