M. Govindaraja Naicker and Others vs Ramanuja Naicker

Thangamani, J.—Petitioners are defendants in O.S. No. 471 of 1991 in the Court of the District Munsif, Chingleput. Respondent/plaintiff

filed that suit for declaration of his title to the suit properties and for permanent injunction restraining the revision petitioners from disturbing his

peaceful enjoyment of the said properties. Along with the suit he filed I.A. No. 1878 of 1991 for permanent injunction. The revision petitioners

resisted that application contending that plaintiff having filed an earlier suit O.S. No. 91 of 1984 against them for the same relief in respect of the

same property and the suit having been dismissed as not pressed and having been with drawn with a liberty to file a fresh suit on the same cause of

action cannot maintain the present suit and no injunction could be granted therein. In another suit O.S. No. 251 of 1969 filed by him also he could

not get any relief even though he pursued the case up to the High Court. And this is a third attempt to grab the property by the plaintiff. The

defendants and their father Kathavaraya Naicker alone are in enjoyment of the lands since 1907. The trial court rejected the contentions of the

defendants and granted the temporary injunction prayed for. And this revision is directed against the said order.

The main argument of learned Counsel for the revision petitioners is that the present action is barred under Order 23, Rule 1, C.P.C. There is no

dispute that O.S. No. 91 of 1984 the earlier suit filed by the plaintiff was dismissed as not pressed and no leave under Order 21, Rule 1, C.P.C.

was obtained therein. However, it appears from the typed set of papers that the suit properties relate to 15 acres and 35 cents in Survey Nos.

129/1 and 129/9of Kunnathur village. The extent claimed in Survey No. 129/1 is a part of larger extent of 17 acres and 88 cents. And in the

earlier action this Court has pointed out that only on sub-division of the extent in the enjoyment of the plaintiff relief could be granted. Thereafter

there was a subdivision in respect of the suit property measuring 15 acres and 35 cents and patta bearing No. 272 has been issued in the name of

the plaintiff by the survey authorities and the plaintiff has paid kist subsequent to the issuance of patta in his favour for faslis 1394 to 1400. No

doubt, learned Counsel for the respondent submits that he was not given any notice prior to the sub-division of the survey number. In case the

petitioners entertain any grievance in this connection, their remedy is to proceed before the proper forum. They cannot object to the issuance of

patta in favour of the plaintiff in this action. Further, there is no evidence on the side of the revision petitioners to indicate their enjoyment of the

disputed lands. So, we cannot hold that the trial court has committed any error in granting the injunction on the basis of the patta and kist receipts

exhibited before it.

There is no dispute that the earlier suit is one for injunction while the present action is for declaration and injunction. Besides, we find from the

plaint in the present suit that it is based on the cause of action which lastly arose on 26.11.1991. Whereas O.S. No. 91 of 1984 was instituted

since the revision petitioners disturbed the plaintiffs possession at that time. Further, while the earlier suit related to a part of a larger extent of 17

acres and 88 cents, the present action is for 15 acres and 35 cents which forms a separate sub-division. As pointed out by the Supreme Court in

Vallabh Das Vs. Madan Lal and Others, , the expression ""subject matter"" is not defined in the Civil Procedure Code. It docs 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. ""Subject-matter"" in Order 23, Rule 1 means the bundle of facts which have to be

proved in order to entitle the plaintiff to the relief claimed by him. 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. Mere identity of some of the issues in the two suits do not bring about an identity of the subject-matter in the two

suits. Where in the first suit the plaintiff sought to enforce his rights to partition and separate possession and in the second suit, he sought to got

possession of the suit properties from a trepasser on the basis of his title; held that the subject-matter in the two suits was not the same although the

factum and validity of adoption of I he plaintiff in both the suits came up for decisions.

Rule 1 of 0rder 23, CPC entitles courts to permit a plaintiff to withdraw from the suit brought by him with liberty to institute a fresh suit in

respect of the subject-matter of that suit on such terms as it thinks fit. The principle underlying Rule 1 of Order 23 of the Code is that when a

plaintiff once institutes a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in

respect of the same subject-matter again after abandoning the earlier suit or by withdrawing the permission of the court to file fresh suit. The law

confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a

litigant from abusing the process of the court by instituting suits again and again on the same cause of action without any good reason, the Code

insists that he should obtain the permission of the court to file a fresh suit after establishing either of the two grounds mentioned in Rule 1(3) of

Order 23. The principle underlying the above rule is founded on public policy. Considering the controversy herein in the light of principles

enunciated in the decision of the Supreme Court referred to above, there is no scope for holding that the subject-matter of both the suits are one

and the same so as to attract the provisions of Order 23, Rule 1, C.P.C. So, the impugned order does not warrant any interference.

In the result, the petition is dismissed. No costs.