Sheo Shankar Prasad and Others vs Sushil Kumar Jaiswal and Others

Hari Lal Agrawal, J.—In this Second Appeal by the defendants against the concurrent judgment of the court below passing a decree for eviction against them from a suit premises under the provision of the Bihar Buildings Control Act, 1947, the only question of law that appears to be worthy of consideration and which has been pressed with some vehemence by Mr. Ras Behari Singh, learned counsel for the appellants, is as to whether the present suit by the plaintiffs was maintainable when they had withdrawn an earlier Title Suit for the same relief under the provision of Order 23 Rule 1 of the CPC without any permission to institute a fresh suit, Earlier, the plaintiffs had instituted Title Suit No. 107 of 1964 in the court of 1st Munsif at Muzaffarpur for the eviction of the defendants from the suit premises on the ground of personal necessity and subletting of the premises in question. In view of the Full Bench decision of this Court in (1) Niranjan Pal and Another Vs. Chaitanyalal Ghosh and Another, that a notice u/s 106 of the Transfer of Property Act determining the tanancy was a condition precedent for institution of a suit u/s 11 of the Act, the plaintiffs withdrew the suit on 7-8-65, without however obtaining any permission to institute a fresh suit.

They instituted a suit in the year 1967 for the same relief. The suit was resisted by the defendants on various grounds but they failed in both the courts. The trial court decreed the suit on both the counts namely the personal necessity as well as subletting, but the court of appeal below, has maintained the decree only on the ground of personal necessity of the premises in question.

As already indicated earlier, learned counsel for the appellants contended that in as much as the plaintiffs had withdrawn the earlier suit without any permission to institute a fresh suit, the present, suit was barred under the provision of Order 23 Rule 1 of the CPC in as much as the present suit was also with respect to the same subject matter and the same relief.

There is no substance in this connection in as much as although the suit is with respect to the same subject matter namely the premises in question, the cause of action for the present suit is not the same. It was held by the Full Bench in Niranjan Pal''s case (Supra) that "it is for the plaintiff to mention in his plaint the fact of determination of the lease as one of the facts constituting the cause of action which he is required to give under Rule 1 Order VII of the Code of Civil Procedure. He has also proved the.....where the plaintiff did not determine the tenancy by giving a notice u/s 106 of the Transfer of Property Act, his action u/s 11 of the Control Act is premature". The above observation make it obvious that the determination of the tenancy is an integral part of the cause of action for the landlord to institute a suit u/s 11 of the Bihar Buildings Control Act.

The expression "the same subject mattes'''' has fallen for judicial consideration time without number and it has been held that the term "subject matter" means the plaintiff''s cause of action for the suit and a suit on a different cause of action is therefore not barred under this rule even though the suit may relate to the same property. In the case of (2) Thota China Subbad Rao and others V. Mattapall Raju and others (A.I.R. 1950 FC 1 it was held by Chief Justice Kanla who delivered the judgment for the Court that Order 23 Rule 1 does not debar a mortgagor from filing a second suit for redemption as the cause of action in such a suit was a recurring one. Then again in the case of (3) Albert Judah Judah Vs. Rampada Gupta and Another, a teamed single Judge of the Calcutta High Court while considering a somewhat similar question observed that if there was an important event essential to complete the cause of action in a subsequent suit which can take place only after the withdrawal of the previous suit then the subject matter of the two suits was different.

The matter need not be discussed at any further length as I find that the point is squarely covered by a Bench decision of this Court in the case of (4) Kaloot Sao and Another Vs. Mostt. (name not Known) and Others, where in a very much similar circumstances it was clearly observed that the term "subject matter" does not only mean the property in respect of which parties quarrel but includes the cause of action also.

As already said earlier that according to the Full Bench decision of this Court the determination of the tenancy of the tenants was necessary for a successful prosecution of the suit for eviction and that this is a necessary part of the cause of action which the plaintiffs have to allege and prove in order to succeed in getting the relief, following therefore the principle of judicial amity it must be held that the lack of permission to institute a fresh suit at the time of the withdrawal of the earlier suit did not debar them to file the present suit as the subject matter of the present suit is different than the earlier suit. In the result, I do not find any substance in this appeal which is accordingly dismissed with costs.