1. This appeal has been preferred by defendant 4 in a suit which was instituted against him and some other defendants for recovery of khas possession of certain lands, it being alleged in the suit that the other defendants were tenants-at-will under the plaintiff and that defendant 4 was a subtenant under them. The order from which this appeal has been preferred is an order passed by the Subordinate Judge of Jalpaiguri by which the learned Judge, having set aside the decision of the Munsif dismissing the suit has remanded the suit for decision on the merits on the evidence in the record and on such further evidence which the parties might like to produce in the suit. The Subordinate Judge has also given a direction that if an opportunity was asked for by any of the parties to adduce any further evidence the trial Court should give him that opportunity. In order to understand the contentions which have been put forward in this appeal it is necessary to set out a few facts.
2. In 1922, the plaintiff of the present suit had instituted another suit against the present defendants or rather against three of them and the predecessors of the others. That suit was instituted on service of notice on all the defendants who were made parties to the suit, with the exception of the heirs of one Kissen Chand, who had been served with notice but had died before the suit has been instituted. On this defect being found, application was made for withdrawing, the suit with liberty to institute a fresh one. This application was granted sometime in July 1923, when an order was-. made and permission to withdraw with liberty to institute a fresh suit was given on condition that the plaintiff would pay the costs of the defendant within 15 days from the date when such costs-would be notified in the order sheet. It was further ordered that on default of such payment the suit would be considered as dismissed with costs. On 14th July 1923, it was noted in the order sheet and notified to the parties that the costs of defendant 3 amounted to rupees-16-11-6. On 28th July 1923, the plaintiff deposited Rs. 16-9-3; that is to say, the amount deposited was short by 2 annas 3 pies. Thereafter, the plaintiff in July 1927 served fresh notices upon the defendants and on the basis of those notices instituted the present suit on 25th April 1929. The reliefs claimed in, both the suits were the same, namely, the relief in the shape of recovery of khas possession. One of the grounds taken in defence in the present suit was-that by reason of the order which the Court had made in the previous suit and which was not fully complied with as stated above, the present suit was not maintainable. This matter formed the subject of an issue, namely, issue 2, which however was worded in these words: 'Is the suit barred by resjudi-cata?' Upon the other points that were taken several other issues were-framed.
3. The Munsif dismissed the suit holding that it failed on the ground that the-condition upon which liberty was reserved to the plaintiff to institute a fresh suit after his withdrawal of the previous one not having been complied with, the previous suit must be regarded as having been dismissed without any liberty reserved and that consequently the present suit was not maintainable. The Munsif did not consider it necessary; to deal with the other issues which had been framed. The plaintiff thereupon preferred an appeal. The Subordinate Judge who dealt with that appeal held.' that the dismissal of the previous suit was no bar to the institution of the present one and overruling the decision of the Munsif on issue 2 as stated above be set aside the decree which the Munsif had made and remanded the case for trial by the Munsif with the directions to which we have already referred. From this decision, as already stated, defendant 4 has preferred the present appeal.
4. The principal question which has been raised on behalf of the appellant in this appeal depends upon a construction of Order 23, Rule 1, sub-rule 3 of the Code, and it is really upon the meaning that is to be attached to this sub-rule that we have to decide the question as to whether the present suit is barred or not. There can be no dispute that the order which was passed by the trial Court in the previous suit allowing the plaintiff to withdraw from the suit with liberty to institute a fresh one on condition that the plaintiff should pay the costs of defendant 3 within 15 days, such costs being notified in the order sheet and there having been a further order made by that Court to the effect that in case of default in the payment of such costs within the time aforesaid, the suit should be considered as dismissed, we think it must be held that upon the default which has occurred on the part of the plaintiff in not putting in the whole amount of the costs even though the amount which was deposited was short only by 2 annas and 3 pies, must operate as amounting to a dismissal of she suit without any liberty reserved. But then the other question will arise and that is this: whether by reason of the dismissal of the previous suit in the circumstances to which reference has been made, the present suit, which has been started on issuing fresh notices on the defendants and upon the cause of action which, it is said, arose on the service of such notices, should be regarded as being not maintainable by reason of the dissmissal of the previous suit. In determining this question one has to consider what is the meaning of the word, 'subject-matter' which is to be found in Order 23, Sub-rule (3). Rule 1, Order 23 of the present Code corresponds to Section 373 of the Code of 1882. Section 373 of the Code of 1882 consisted of three paragraphs. The first of those paragraphs is reproduced in the first two sub-rules of Rule 1, Order 23. There is not much difference between the contents of para. 1, Section 373 and of the first two sub-rules of Rule 1, Order 23. The wording has been recast ; but what is to be found in the said paragraph is substantially reproduced in these two-sub-rules. Para. 2, Section 373 contained these words,
was to be precluded from bringing a fresh suit for the same matter or in respect of the same part.
5. Sub-rule 11, Rule 1(3) says,
shall be precluded from instituting a fresh suit in respect of such subject-matter or such-part of the claim.
6. So the material difference between the two provisions of the law consists in this-that whereas in para. 2, Section 373 the word 'matter' was used, in Sub-rule (3), Rule 1 we find the expression ' subject-matter.' Now it has been held in a number of cases to which specific reference need not be made that this alteration has been made only with the object of securing uniformity of expression, for, in Section 373 in para. 1, the word 'subject-matter' was used and in the other the word 'matter' was used. The law, therefore, practically remains the same now as it was under the Code of 1882. Now, Section 373 of the Code of 1882 was interpreted in two different phases by the Courts. In the oases of Kamini Kanta v. Bam Nath (1894) 21 Cal 265 and Gopal Chandra Banerjee v. Purna Chandra Banerjee (1906) 4 CWN 110, this Court expressed the view that the word 'matter' used in Section 373 did not mean the property concerned in the suit but that it had reference to the right in that property which the plaintiff was seeking to enforce in it. A very different view was taken by the Madras High Court in the case of Achuta Menon v. Achutan Nayer (1898) 21 Mad 35; In that ease the learned Judges referring to Anderson's Dictionary of Law held that the term 'matter' in a context like that in Section 373 means,
the subject of legal action, consideration, com-plaint or defence or the fact or facts constituting the whole or a part of a ground of action or defence.
7. The logical result of accepting this-definition was that even though the plaintiff's suit had been dismissed by reason of the fact that he had failed to comply with the condition under which liberty was reserved to him for the institution of a fresh suit, a fresh suit upon a different cause of auction or upon a different title subsequently acquired but for the same property would have to be held as not maintainable. Indeed, in that case, what happened was that the plaintiff had tried to eject the defendant in the earlier suit upon a title derived in the year 1880, and subsequent to the dismissal of that suit under the aforesaid circumstances he derived a fresh title in 1892, and it was held that the fresh suit in which the title subsequently acquired was litigated upon was barred by reason of the dismissal of the previous suit. This view of the Madras High Court was adhered to in several decisions of that Court amongst which reference may be made to the cases of Machana Uajhala v. Gorugantulu Yaggamma (1910) 8 I C 1066 and Sen-nava Beddiar v. Venkatachala AIR 1915 Mad 1190. Subsequently, however, there was a reference to a Full Bench in the year 1916, and the Full Bench in the case of Singa Reddi v. Subba Reddi AIR 1917 Mad 512 overruled the decision in the case of Achuta Menon v. Achutan Nayer (1898) 21 Mad 35, and the other cases which had followed it, and agreeing with the view taken by this Court held that,
without attempting an exhaustive definition of all that may be included in the term 'subject-matter,' it should be held 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 within the meaning of Order 23, Rule 1, Sub-rule (3), Civil P. C.
8. There are two other decisions, one of the Madras High Court and the other of the Bombay High Court to which reference is also necessary. In the Madras High Court in the case of Chenchuram Naidu v. Bahavuddin Sahib AIR 1933 Mad 3, which was a case in which the plaintiff as landlord had instituted a suit in ejectment against a tenant but the suit was allowed to be withdrawn on the ground that there was absence of the requisite notice to quit but no liberty was reserved to the plaintiff to institute a fresh suit and thereafter the plaintiff instituted another suit after having given the necessary notice, it was held that the second suit was not a suit in respect of the same subject-matter because the word 'subject-matter' in Order 23, Rule 1 means the series of acts or transactions alleged to exist giving rise to the relief claimed.
9. The learned Judges purported to follow the decision of the Bombay High Court in the case of Rakhmabai v. Mahadeo Narayan AIR 1917 Bom 10. In the case last mentioned, Scott, C. J., has explained the meaning of the word 'subject-matter' in these words:
The question is whether the previous suit was a suit for the same 'subject-matter' within the meaning of Order 23, Rule 1. We are of opinion that 'subject-matter' means, to use the words of 0.1, 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.'
10. It may be pointed out that the case of Rakhmabai v. Mahadeo Narayan AIR 1917 Bom 10 also was a case in which the first suit was withdrawn upon the ground that the notice which had been served was defective and, therefore, the cause of action was incomplete. It has been argued by Mr. Mukherjee appearing on behalf of the appellant that these cases are distinguishable because although if a suit is instituted without service of notice upon the defendant and thereby the cause of action becomes incomplete and therefore the suit is allowed to be withdrawn, in a case where notice has been given and nothing is decided as to whether the notice is sufficient in law or not, the principle laid down in the Madras and Bombay High Courts to which reference has been made should not be held to apply. It is not necessary for our present purposes to go into a discussion of this question because as a matter of fact, in the present case, the notices that were served before the institution of the first suit were defective by reason of the fact that one of the persons who had been so served was dead and the suit had been instituted against his heirs who were persons on whom no notice had been served. We are of opinion that there is no room for the contention that the decision in the last-mentioned case is not applicable to the present case. We hold, therefore, that the Subordinate Judge was right in holding that the suit should not have been dismissed for the reason that the previous suit had been withdrawn without any liberty being reserved to the plaintiff.
11. A second contention has been put forward on behalf of the appellant and that turns upon the directions that had been given by the Subordinate Judge in the order of remand. The Subordinate Judge, as we have already stated, has sent the case back on remand to the trial Court and has given a further direction that that Court should give the parties an opportunity to produce such further evidence as they might desire. We are of opinion that the learned Subordinate Judge was not right in making such an order of remand in the present case. In the first place, evidence had been adduced by the parties with regard to all the issues which had been framed and there was no complaint before the learned Judge nor is there any complaint before us to the effect that any evidence was shut out. In these circumstances, the learned Subordinate Judge, instead of sending the case back to the trial Court, should have dealt with and disposed of the case on the merits and upon such evidence as there was already on the record. Of course, if on a consideration of that evidence the Subordinate Judge came to the conclusion that fresh evidence on a particular point was necessary, there was nothing to prevent him from calling for such evidence in the exercise of the powers which an appellate Court always has. There is no reason, however, why a fresh lease of life to the case would be given by sending the case to the Munsif and then tying up his hand with a direction that the parties will be at liberty to produce such fresh evidence. The result is that although we disagree with the appellant in his main contention which he has put forward as regards the maintainability of the present suit, we uphold his second contention and order that the order of the Subordinate Judge will be modified and that an order will be recorded that the case be sent back to the Subordinate Judge who will proceed to deal with the appeal on the merits as an appellate Court would ordinarily do. There will be no order for costs in this appeal.