JUDGMENT
R. Bhaskaran, J.
1.The substantial questions of law formulated on which notice was issued to the respondents read as follows :
1. Whether the Courts below are justified in holding that suit is hit by Order 23, Rule 1 (2), Code of Civil Procedure without the plaint and other documents in the earlier suit?
2. Whether the Courts below are justified in holding that the cause of action in both the suits are one and the same?
3. When the subsequent suit is for a different and distant relief and a different cause of action, the dismissal of an earlier suit on a different subject-matter and different cause of action is hit by Order 23, Rule 1 of Code of Civil Procedure?
4. Whether the Courts below are justified in not answering all issues as contemplated under Order 20, Rule 5, Code of Civil Procedure?
5. Whether non-compliance of Order 20, Rule 5 Code of Civil Procedure renders the judgment void?
2. This second appeal is filed by the plaintiff in a suit for declaration and prohibitory injunction. The dispute in the suit was with respect to a pathway claimed by the plaintiff. The plaintiff is the owner in possession of the plaint schedule property. The defendants are the owners in respect of the property on the western side of the plaintiff’s property. On the further west of the defendants’ property is the Thoppumpady-Alleppy road. The plaintiffs have been using the pathway from the plaintiffs’ property through the property of the defendants to reach the public road. The pathway was having 4 feet width and an opening of 6 feet on the western boundary of the plaint schedule property. The plaintiff has no other pathway except this. He has been using the pathway for more than 50 years continuously as of right and without any obstruction. In the alternative the plaintiff also claimed easement by necessity.
3. Defendants filed written statement contending that the plaintiff and his predecessors were passing to the public road from the plaint A-schedule through the property on the northern side of the plaint A-schedule as well as southern side. The property on the northern side was purchased by a Company. The plaintiff and members of his family were passing through the property on the southern side of plaint A-schedule. It was also contended that with the permission of the defendants 1 and 2 they used the property to enter the road on the west. The plaintiff constructed a compound wall on the western side of plaint A-schedule property leaving a gap for ingress and egress for the defendants to operate China net in the Kayal on the further east of the plaintiffs property. The plaintiff was using the property on the southern side of plaint A-schedule property to enter the public road. That property was obtained as kudikidappu by one Narayanan the cousin brother of the father of the plaintiff from the landlord. When the defendants wanted to construct a compound wall on the western side of the property the plaintiff obstructed. On the complaint of the plaintiff defendants 1, 4, 5 and 6 were taken into custody by the police. At that time Sugunan, S/o. Narayanan quarrelled with the 3rd defendant and in that quarrel Sugunan died and the 3rd defendant was sentenced to life imprisonment. After the death of Sugunan the plaintiff and his family were not using the property of the defendants to reach the public road. Earlier the plaintiff filed O.S. 503/1995 for injunction claiming right of way before the Munsiff Court, Kochi and that suit was dismissed as not pressed. Without mentioning about the same the present suit was filed and an ex parte injunction was obtained.
4. The trial Court after trial considered the question of maintainability of the suit only. According to the trial Court, in view of the dismissal of the earlier suit as not pressed, and without a prayer made for permission to file a fresh suit, the second suit was barred. The trial Court therefore dismissed the suit.
5. In appeal it was contended that in the earlier suit there was only one defendant and in the present suit there were more than one defendant. It was also contended that the description of the pathway in the present case is different from the one described in O.S. .503/1995 and the cause of action for the suit was also different. The appellate Court found that by impleading of additional defendants the plaintiff could not get out of the bar under Order 23, Rule 1 (4) of Code of Civil Procedure. The appellate Court found that both the suits were in essence for the same relief and as held by the Supreme Court in Sarguja Transport Service v. S.T.A. Tribunal, Gwalior, AIR 1987 SC 88 the bar of fresh suits under Order 23, Rule 1 is based on public policy to prevent institution of suits again and again and therefore the present suit is only to be dismissed.
6. Learned counsel for the appellant submitted that under Order 23, Rule 1 of Code of Civil Procedure the plaintiff may abandon his suit or part of his claim and no permission of the Court is required for the same. It is also submitted that under Order 23, Rule 1 a suit can be withdrawn by the plaintiff after getting, permission to institute a fresh suit in respect of the same subject matter and the Court will grant permission if it is satisfied that the suit must fail by reason of some formal defect or there are other sufficient grounds for allowing the plaintiff to institute a fresh suit Under Order 23, Rule 1 (4) where the plaintiff abandons any suit or part of 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. Therefore the bar is only with respect to “such subject matter”. The words “subject matter” is not defined in the Code of Civil Procedure. Learned counsel for the appellant also submitted that the defendants did not produce the plaint in the earlier suit to show that the subject matter of the two suits was the same and the dismissal of the suit under Order 23, Rule 1 (4) without perusing the two plaints and verifying whether the subject matter of the two suits is the same was illegal. The failure of the trial Court to answer all the issues framed in the suit is also challenged in the appeal as violation of Order 20, Rule 5, CPC.
7. It is now agreed by both sides that if the subject matter of both the suits were the same the second suit after abandoning the first suit is barred under Sub-rule (4) of Order 23. Rule 1 of Code of Civil Procedure. What is meant by “subject matter” is well explained in the decision reported in Vallabh Das v. Madanlal, AIR 1970 SC 987. The Supreme Court held that 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. In that case the first suit was for partition claiming to be the adopted son of Prem Sukh. Pending suit the father died and the suit was permitted to be withdrawn on payment of costs. Without paying costs the second suit for recovery of possession was filed against the person whom Prem Sukh had set up as the adopted son. The cause of action for the first suit was the division of status between the plaintiff and his adoptive father. In the said suit the cause of action arose when the adoptive father and mother died. The second suit was for recovery of possession from a stranger. The relief prayed were also different. Therefore the Supreme Court held that even if the costs were not paid the suit was not barred under Sub-rule (4) of Order 23, Rule 1 of Code of Civil Procedure. Learned counsel for the appellant relied on the decision reported in Mathew Elechiamma v. Markose Korulla, AIR 1979 Ker 178. In that case the first suit was without issue of notice under Section 106 of the Transfer of Property Act. When the second suit was filed after notice it was found that the dismissal of the first suit as not pressed will not stand in the way of deciding on merit the suit as the first suit was without the necessary cause of action.
8. The learned counsel for the appellant submitted that a perusal of the plaint in the earlier suit will show that there was no compliance with Order 7, Rule 3 of the Code of Civil Procedure inasmuch as the details of the pathway claimed in the plaint was not given in the plaint schedule in that suit. It is therefore contended that the subject matter of the two suits are not identical. It is also contended that Order 23, Rule 1 is penal in nature and therefore has to be strictly interpreted as otherwise substantive rights of parties will be defeated by yielding to procedural law. If as a matter of fact, the plaintiff has no other way to get out of his house except through the defendants’ property and there is no consideration of that question by the trial Court even after taking evidence, it is all the more necessary to consider whether all the conditions under Order 23, Rule 1 (4) are satisfied in this case. It is also contended that the earlier suit was not pressed even before the defendants entered appearance. It is further contended that though in the written statement the filing of O.S. No. 503 of 1995 by the plaintiff was mentioned, there was no contention raised that the suit is barred in not getting permission to file a fresh suit.
9. The copy of the plaint in O.S. No. 503 of 1995 was produced for perusal and the averments In that plaint were brought to my notice by the learned counsel on both sides and it was submitted that it did not contain the nature of the easement claimed and there was no schedule showing details of the pathway and there was no compliance of Order 7, Rule 3 of the Code of Civil Procedure. The subject matter of the earlier suit was indefinite and it cannot be the same as in the present suit which is definite.
10. The scope of Rule 23, Rule 1 (3), as it stood prior to the amendment of the Code of Civil Procedure (in 1976), was considered by a Full Bench of the Madras High Court in Singha Reddi v. Subba Reddi, AIR 1917 Madras 512 (2). Sadasiva Aiyar, J., speaking for the Bench, observed in the order of reference as follows :
“Is a plaintiff who, honestly in order to save time and trouble to the Court, withdraws the first suit instead of allowing it to be dismissed on the unsustainability of the rights set up by him, to be in a worse position by his said honest withdrawal than if he had delayed the disposal of that suit and obliged the Court to give its opinion on the merits of his first cause of action?
The Full Bench gave the opinion as follows :
“We agree with the conclusion of Sadasiva Aiyar, J., in the order of reference. The question is whether the second suit can be regarded as brought in respect of the same subject-matter as the first suit within the meaning of Order 23, Rule 1 (3), Civil P.C. The terms “subject-matter” and “the same matter” which occurred in the corresponding Section 373 of the old Code have not been defined, and, must, we think, be construed strictly in a penal provision of this character. Without attempting an exhaustive definition of all that may be included in the term “subject-matter” we are of opinion that where, as in the present case, 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. This was expressly decided in Gopal Chandra Banerjee v. Purna Chandra Banerjee, (1900) 4 CWN 110 with which we agree. It follows that the plaintiff in the second suit is not debarred from contesting the allegations made by the defence in the first suit. We think that the decision in Achuta Menon v. Achuta Nayar, (1898) 21 Mad 35 and the decisions which followed it in Machana Uajahala Dikshatulu v. Gorugantulu Yaggamma, (1910) 8 IC 1066 and Sennava Reddiar v. Venkatachala Reddiar, (1915) 28 IC 91 must be overruled.” The decision of the Full Bench of the Madras High Court was later followed by the Calcutta High Court. By, a detailed discussion, the Calcutta High Court in A. J. Judah v. Ramapada Gupta, AIR 1959 Calcutta 715, the Calcutta High Court observed that the subject-matter of the suit can be ascertained from the plaint filed. The High Court also held:
“For the purpose of cause of action all the facts pleaded have to be looked at as a “bundle” that is in the collective capacity as giving right to a claim. Each fact cannot be looked at in isolation, or the facts cannot be looked at in different combination. If the reliefs claimed in the subsequent suit though not expressly stated but was implicit in the previous plaint by reason of the bundle of facts pleaded as constituting the cause of action, the plaintiff would be debarred from claiming the relief in a subsequent suit based on the same bundle of facts because of Order 2, Rule 2 of the Code. I doubt whether in such a case Order 23, Rule (1) (3) would be a bar, even though certain decisions may perhaps be read as suggesting it would.”
Though the word “subject-matter” of the suit may have been interpreted as synonymous with the words “cause of action” the meaning of the two expressions cannot be said to be the same. As held by the Supreme Court in Sarguja Transport Service v. S.T.A. Tribunal, Gwalior, AIR 1987 SC 88, the purpose of Order 23, Rule 1 is to prevent institution of suit again and again on the same subject matter. The principle underlying Order 23, Rule 1 is founded on public policy. In that case, an Original Petition was filed challenging the order of State Transport Appellate Tribunal as dismissed as withdrawn. Subsequently, another original petition was filed challenging the same order and the Supreme Court found that the principle underlying Order 23, Rule 1 of the Code of Civil Procedure should be extended to petitions filed under Articles 226 and 227 of the Constitution also. It was held in that decision that there was no justifiable reason to permit the petitioner to invoke the extra ordinary Jurisdiction of the High Court under Article 226 of the Constitution once again. However, it was made clear that it may not be a bar in cases where the writ petition involves the personal liberty of an individual in which a fundamental right of a person guaranteed under Article 21 of the Constitution is involved. Such cases stands on a different footing. If as a matter of fact, the earlier claim did not comply with the provisions of Order 7, Rule 3 and the ingredients for a declaration of an easement right under the Indian Easements Act and that suit was abandoned even before the defendants entered appearance, it cannot be said that the subject matter of that suit was the same as the subject matter in the latter suit which contained necessary averments for establishment of an easement right with schedule as required under Order 7, Rule 3 of the Code of Civil Procedure. It cannot be forgotten that the right to access to one’s residence as ‘recognised by Indian Easements Act is a substantive right and that is part of a right to live. Therefore, the question has to be considered whether the plaintiff has established his easement right by prescription or whether he has an easement of necessity which may not be available if he has got any other alternate pathway. The interpretation of the word “subject-matter” within the scope of Order 23, Rule 1 (4) can be made having regard to the substantive right of the parties and to do justice between the parties as the consequence of strict interpretation will be penal in nature.
11. The records in the earlier suit, was not produced for the purpose of verification of its contents. The trial Court has stated that records in the earlier suit was called for and it was verified whether the earlier suit was dismissed as withdrawn with or without getting permission. One can only assume that at the time of verifying whether the suit was withdrawn with or without permission, the Court could have looked into the contents of the plaint also. But the substantive rights of parties cannot be defeated by such assumptions. In view of the fact that the plaint in O.S. No. 503 of 1995 was produced for perusal as agreed to by both sides and this Court expressed an opinion as to whether the subject matter of the two suits is the same or not, it may not be necessary to direct the trial Court against to consider the same. At any rate it can be safely said that the trial Court as well as the appellate Court were not justified in law in dismissing the suit on the issue of maintainability of the suit without such a contention in the written statement and without the plaint in the earlier suit being produced as an exhibit. The substantial questions of law raised as questions Nos. 2 and 3 are found in favour of the appellant. The next question to be considered is whether the trial Court was justified in disposing of the suit without answering all the issues and on the basis of the finding of additional issue No. 4 which related the maintainability of the suit only. It was after the closing of evidence on the side of the plaintiff, an additional issue was framed, though there was no sufficient pleadings in the written statement with respect to the maintainability of the suit. As held by the Supreme Court in Sita Ram v. Radha Bai, AIR 1968 SC 534, an issue could be determined only if it arises on the pleadings of the parties. In this case, the trial Court entertained the evidence on both sides and obtained a report and plan from the Commissioner and It was only proper that the trial Court enters a finding on all issues. It is true that under Order 20, Rule 5, if a finding upon one or more of the issues is sufficient for the decision of the suit, it may not be necessary to enter finding on all other issues. Since I have already found that the finding on the additional issue is wrong, the trial Court has to consider all the other issues on merit and decide the suit afresh.
In the result, the substantial questions of law raised as questions 2 and 3 are found in favour of the appellant and the appeal is allowed and the judgments and decrees of the Courts below are set aside. The trial Court is directed to take a decision on all other issues on merit except the maintainability of the suit. The parties shall appear in the trial Court on 18-11-2003.