VALLABH DAS versus DR. MADAN LAL & ORS.

Citation: [1971] 1 S.C.R. 211 · Decided: 02-04-1970 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Dismissed

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Judgment (excerpt)

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D 
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211 
VALIJABH ~AS 
v. 
DR.,MADAN T,AL & ORS. 
Apri! 2, 1~70 
[J. C. SHAH AND K. S. HEGDE, JJ.] 
! 
CoJe of Civil Procedur~ (Act 5 of 1908), 0. 23, R. I-Withdrawal of 
suit by plaintiff-Court impbsing condition for filing fresh suit on the •ame 
subject-matter,-Meaning of 'subject-matter. 
P was the owner of the suit· properties. He had no children. He gifted 
some of his properties to his wife' 0J1o)une 14, 1943. On April 29, 1946 
the first respondent instituted a suit for• a declaration that he was the 
adopted son of p and for partition and possession of his share in the family 
property. 
The 
first 
respondent 
claimed 
to 
have 
been 
adopted 
on July 12, 1943, P denied the said 
adoption and alleged that in fact 
he had adopted the appellant on April 10, 1946. In view of that alle-
gation the appellant was added as a supplemental defendant in the said 
suit, but no relief was claimed against him. .puring the pendency of that 
suit P died. Thereafter the first re.pondent moved the court to withdraw 
the suit. 
He was permitted to withdraw the same with liberty to file a 
fresh suit on the same cause of action on condition that he paid the defen-
dants' costs of that suit before instituting a fresh suit. 
Thereafter P's 
widow bequeathed her properties to ihe first respondent and died soon 
after. 
On November 29, 1951 the first respondent brought a fresh suit 
without having paid the costs of the appellant in the earlier suit., 
The· 
appellant resisted the suit on several grounds. However the trial court and 
the High Court decided in favour of the first respondent. Thereupon by 
special leave the present appeal was filed by the appellant. 
The main 
question that fell fol' consideration was whether the suit under appeal was 
maintainable when the condition precedent imposed by th- court in the 
earlier suit-namely, the payment of defendants' costs by the plaintiff 
before bringing a fresh suit on the same cause of action-had not been 
complied with. 
HELD: (i) Rule I. 0. 23. Code of Civil Procedure empowers the 
courts to permit a plaintiff to withdraw from the suit bl'ought by him 
with liberty to institute a fresh suit in respect of the subject-matter of that 
suit on such terms as it thinks dt. The expression 'subject-matter' is not 
deflned in the Code. It does not mean property. That expression has a 
reference to a right in the Jtoperty whi~ the plaintil! 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 previous suit. [213 G-214 BJ 
(ii) The non-fulfilment of the condition imposed by the Court at the 
time of withdrawal of the first suit did not bar t'ie present suit because the 
subject-matter of the two suits was not the same. 
In the first suit the first respondent was seeking to enforce his right to 
partition and separate possession. In the present suit he sought to get pos-
•ession of the suit properties from a trespasser· on the basis of his title. 
Jn the first suit the cause of action was the division 'of status between the 
first respondent and his adoptive father and the relief claimed was the con-
version of joint possession into separate possession. In the present suit 
the plaintiff was seeking possession of the suit properties from a trespasser. 
212 
SUPREME COURT REPORTS 
[1971) l S.C.R. 
In the first case his cause of action nrose on the day he got separated from 
A 
his family. In the present suit the cause of action. namely, th•~ series of 
transactions which formed the basis of the title to the suit properties arose 
on the death of his adoptive father and mother. (214 B·D] 
Mere identity of some of the issues in the two suits did not b'ring about 
an identity of the subject matter in the two suits. [214 D·El 
The 21ppea\ must accordingly be dismissed. 
Rak/1111a Bai v. Malwdeo Narayan, 1.L.R. 42 Born. 1155 and Singa 
Ret:dy v. Subb" Reddy, I.L.R; 39 Mad. 987, approved and applied. 
CIVIL APPELLATE JURISDICTION: 
Civil Appeal No. 615 of 
B 
19~. 
c 
.Appeal by special leave from the judgment and decree dated 
June, 25, 1962,of the Bombay High Court, Nagpur Bench in 
Appeal No. 191 of 1956 from original Decree. 
B. R. L. Iyengar, S. I(, Mehta, for the appellant. 
S. N. Kherdekar, G. L. Sanghi arid A. G. Ratnaparkhi, for 
respondent No.

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