JUDGMENT
J.N. Bhatt, J.
1. A short but interesting question which is raised in this appeal is with regard to the effect and interpretation of the provisions of Order 23, Rule 1 of the Code of Civil Procedure, 1908 (‘Code’ for short) on a subsequent suit for recovery of amount advanced.
2. The appellant who is the original plaintiff had instituted summary Suit No. 1556 of 1973 against the respondent-original defendant for recovery of an amount of Rs. 8,750/-in the City Civil Court at Ahmedabad. The plaintiff inter alia contended that he is the sole proprietor of business run in the name of M/s. Hiramal Udhamal at Hanpura, Asarwa, Ahmedabad. It is his case that as he was friendly with the defendant he had given him short-term loans on account of his stringent financial difficulties. On various occasions, the defendant went on taking loans from the plaintiff and he also made part payments. As per the case of the plaintiff, the defendant had taken the total amount of Rs. 38,000/- between the period from November, 1970 and April, 1972. The defendant had paid an amount of Rs. 31,000/-. It is also the case of the plaintiff that the defendant had given two cheques drawn on Dena Bank for Rs. 2,500/- to the plaintiff. Both cheques came to be bounced. Therefore, the plaintiff claimed an amount of Rs. 7,000/- as principal amount and Rs. 1,750/- as interest at the rate of 12% per annum in the suit.
3. The defendant resisted the suit by filing written statement at Ex. 24 and raised various contentions against the claim of the plaintiff in the suit. He inter alia contended that the plaintiff had instituted summary suit No. 2023 of 1971 against him on the same
cause of action but the said suit was withdrawn on December 17, 1971 unconditionally by filing application Ex. 29 in that suit. It is also pleaded by the defendant that the plain-tiff had sought permission of the Court for filing a fresh suit on the same cause of action which was rejected. It is, therefore, contended by the defendant that the suit is barred and not maintainable. The defendant also contended that he had paid full dues and the plaintiff is not entitled to claim any amount. Thus, the suit was fully resisted.
4. During the course of the proceedings before the trial Court, a preliminary issue about maintainability of the suit was raised with the consent of parties. The preliminary issue raised was — whether the suit filed by the plaintiff is maintainable in view of the fact that the Civil Suit No. 2023 of 1971 filed by the plaintiff was withdrawn without obtaining permission of the Court to file a fresh suit. In short, the preliminary issue was — whether the suit filed by the plaintiff is barred by the provisions of Order 23, Rule 1 of the Code. After hearing both the parties and considering the facts and circumstances, the trial Court held against the plaintiff and found that the suit is barred by the provisions of Order 23, Rule 1 of the Code.
5. Being aggrieved by the said judgment and decree passed by the trial Court, the original plaintiff has now come up before this Court challenging its legality and validity by filing this appeal under S. 96 of the Code.
6. Learned counsel appearing for the appellant-original plaintiff has contended that the impugned judgment and decree is illegal as the suit filed by the plaintiff is not barred by the provisions of Order 23, Rule 1, C.P.C. In support of these contentions, reliance is also placed on a decision of the Supreme Court. When the matter was called out, none appeared for and on behalf of the respondent-defendant.
7. Order 23, Rule 1 of the Code makes provision for withdrawal of the suit or abandonment of part of claim. The finding of the Court is that the suit filed by the plaintiff is barred by the provisions of Order 23, Rule 1(3).
Order 23,Rule 3 empowers the Court to allow the plaintiff to institute fresh suit on the subject-matter of the suit or part of the claim while granting permission to withdraw the such suit.
8. Order XIII reads as under:
“(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided thatwhere the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to Sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) Where the Court is satisfied–
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim–
it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(4) Where the plaintiff–
(a) abandons any suit or part of claim under Sub-rule (1) or
(b) withdraws from a suit or part of a claim without-the permission referred to in Sub-rule (3),
he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such
subject-matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under Sub-rule (1), or to withdraw under Sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.”
This is an important provision made in the Code. It can very well be seen from the aforesaid provisions that withdrawal of a suit bars the plaintiff from bringing a fresh suit wherein permission of the Court is not obtained. Subsequent suit is not barred if permission to file a fresh suit is accorded by the Court. Where the Court is satisfied that the suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of the suit or a part of the claim, the Court is empowered to grant the aforesaid permission to withdraw from such suit or such part of the claim of such permission as it thinks fit with liberty to institute a fresh suit in respect of the same subject-matter of such suit or such part of the claim.
9. Expression ‘subject-matter’ occurring in Order 23, Rule 1 means the plaintiffs cause of action for the suit. Cause of action means bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. Obviously, where the cause of action and the relief claimed in the subsequent suit are not the same as the cause of action and the relief claimed in the former suit, the second suit is not barred by the provisions of Order 23,Rule 3. In such circumstances it cannot, therefore, be said that the second suit is filed on the same cause of action or in respect of the same subject-matters, as the first suit. However, if the former and subsequent suits have the same cause of action or the same relief and if the former suit is withdrawn without obtaining permission of the Court to file a fresh suit on the same cause of action, then in that case, it is obviously barred by the provisions of Order 23, Rule 4.
10. The trial Court on comparison of the certified true copy of the plaint of the former
suit and the plaint in the subsequent suit and in light of other attending circumstances, reached the conclusion that the subsequent suit is barred by the provisions of Order 23, Rule 4, On appreciation of the facts and the circumstances, the trial Court found that in both the suits, cause of action is the same. Even the relief claimed in both the suits is substantially the same. The amount claimed in both the suits was also the same. In the former suit, the plaintiff had filed an, application seeking permission of the Court to withdraw from such suit with liberty to file a fresh suit on the same cause of action. In that application, the plaintiff did mention that his advocate, through oversight, filed the suit on the basis of goods transactions instead of money transaction and due to such technical mistake and the whole cause of action was changed, the former suit was likely to fail. He, therefore, prayed that the Court may be pleased to permit him to withdraw the suit with liberty to file the fresh suit. The trial Court in the former suit, did not accord any such liberty to institute fresh suit as contemplated under Order 23,Rule 3. In the former suit, the following order was passed by the trial Court:
“Plaintiff withdraws by purshis Ex. 29. Hence suit is dismissed due to non-prosecution. Plaintiff to pay defendant’s costs quantified at Rs. 30.”
It is, therefore, clear from the plaints in both the suits that all averments and allegations made by the plaintiff in both of them are verbatim except one allegation that in the former suit, the plaintiff stated that the defendant purchased goods on credit; whereas, in the second suit, he has stated that the defendant has taken loans in cash amount. This difference or change or separate nomenclature does not save the plaintiff from the bar of Order 28, Rule 4. It would not make any substantial change since it is immaterial whether amounts were due on account of goods supplied or on account of cash amount or loan for purchase of goods from him by the defendant. In pith and substance, from the allegations and the averments made in both the plaints and the extracts of books of accounts, the suit dues are claimed on account
of sale of goods on credit in the former suit. The suit was based on the fact that the plaintiff was unpaid seller; whereas in the subsequent suit, in a different form, the amount is claimed as if the plaintiff had advanced the amount to facilitate the defendant for purchase of goods from his shop. In sum and substance, the cause of action, the relief, basis of the suit and the material averments remained unchanged. Therefore, the second suit is incompetent and not maintained being barred by the provisions of Order 23, Rule 4. Therefore, the views and ultimate conclusion reached by the trial court are justified arid require no interference.
11. Where the plaintiff withdraws the former suit without permission of the Court, he is precluded from instituting a fresh suit in respect of the same subject-matter under Order 23, Rule 4 of the Code and against the same defendant. This rule is mandatory. Therefore, the plaintiff cannot thereafter institute a suit for enforcing what was the subject-matter of the former suit. The subject-matter in the former and subsequent suits was the same. Subject-matter means series of acts or transactions alleged to exist giving rise to the relief claimed. Therefore, in such a situation, when the former suit is withdrawn unconditionally or without any order granting leave to withdraw the suit with liberty to bring fresh suit in the circumstances would obviously operate a bar to a fresh suit, as contemplated by the provisions of Order 23, Rule 4, In the former suit, permission of the Court to file a fresh suit on the same cause of action was not obtained under Order 23,Rule 3. The subsequent suit based on the same subject-matter against the same defendant on the same cause of action is, therefore, barred by Order 23, Rule 4. There is no reason, therefore, to interfere with the impugned judgment and decree recorded by the trial Court.
12. It is a settled proposition of law that Order 23, Rule 1(3) of the Code empowers the 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 the suit on such terms as it things fit. The terms and conditions imposed on the plaintiff in the previous suit must be fulfilled
while filing the subsequent suit on the same cause of action. Expression ‘subject-matter’ is not statutorily defined in the Code. However, 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 in the former suit.
13. Reliance is placed on a decision of the Supreme Court in Vallabh Das v. Madanlal, AIR 1970 SC 987. After having examined the said decision, this Court finds that it is not applicable to the facts of the present case. In the case before the Supreme Court, the first suit filed by the plaintiff was to enforce his right to partition; whereas, in the subsequent suit, possession of the suit property was claimed from the trespasser on the basis of title. Therefore, it was held in that case that the subject-matter in the two suits was not the same although the factum and validity of adoption of the plaintiff in both the suits came up for decision. It is, therefore, clear that the said decision is not helpful to the plaintiff.
14. Having regard to the facts and circumstances narrated hereinabove and the relevant proposition of law, this Court has no hesitation in finding that this appeal is merit-less and is required to be dismissed. It is accordingly dismissed with no order as to costs.