S.M. Abdul Wahab, J.@mdashThe second appeal has been preferred by the plaintiff.
2. The suit was filed by the plaintiff to declare its right over the suit property and for injunction restraining the first defendant and his men from
interfering with the peaceful possession and enjoyment of the suit property by the plaintiff.
3. The case of the plaintiff is that the plaintiff is a Bajanai Madam managed by the trustees, one Ananda Chandrasekaran by deed dated 6.4.1972
donated the suit property to the madam. One Ramalinga Gramani by deed dated 2.4.1970 bequeathed properties to his daughters. However, he
left out some properties from the purview of the will and bequeathed those items of properties in favour of Ananda Chandra Sekaran his eldest
son-in-law. In fulfilment of the wishes of Ramalinga Gramani, Ananda Chandresekaran donated the suit property to the madam and handed over
possession also to the Dharmakarthas. The first de-fendant has purchased 3/4th share in the suit property from the defendants 3 to 5 who are the
daughters of the aforementioned Ramalinga Gramani. After the purchase the first defendant filed a suit and obtained ex parte injunction against the
3rd parties but no such injunction was obtained against the madam.
4. The defendants contended that Ananda Chandrasekaran had no right over the suit property and hence his donation was not valid. The plaintiffs
were not in possession of the property, in O.S. No. 211 of 1974 against one Kannjappan Pathri, Venu, Angalan and Murugan an injunction was
obtained. Mere application to set aside the ex parte decree was dismissed. O.S. No. 495 of 1980 filed by Madam by its trustees for identical
relief was dismissed on 12.6.1981. Therefore, the present suit is not maintainable.
5. The trial court has framed as many as five issued. The issue No. 1 relates to the maintainability of the suit. The second one is whether the
property devolved upon the 6th defendant by virtue of a will dated 2.4.1970 by Ramalinga Gramani, In substance, the issue is as to whether the
aforementioned Ananda Chandresekaran was bequeathed with some of the properties of Ramalinga Gramani, which was not covered by his will
dated 2.4.1970. The trial court answered both the issues in favour of the plaintiff and as well as decreed the suit.
6. The lower appellate court has framed as many as six points for determination. The main points are whether the suit filed by Madam is
maintainable and whether the defendant No. 6 became the owner of the suit property. After considering all the points, the lower appellate court
held that the 6th defendant did not became the owner of the suit property. Hence he has ho title to donate the property to Madam. As regards the
maintainability i.e., point No. 3 it has held that the suit was not maintainable as there is no proof relating to the appointment as trustees. Another
point that was considered by the lower appellate court is whether the averments in paragraph 4 of the written statement of D-l about O.S. Nos.
211 of 1974 and 495 of 1980 are true and proved. On this point also the lower appellate court has found that paragraph 4 of the written statement
of D-l stood proved through documents.
7. Paragraph 4 refers to the suit O.S. No. 211 of 1974 and to the suit O.S. No. 459 of 1980. O.S. No. 211 of 1974 was filed by the first
defendant against four persons for declaration of title to suit property. Suit O.S. No. 459 of 1980 was filed by the Madam, against the first
defendant for setting aside the sale in favour of the defendant No. 4, the 1st defendant herein the present suit and for injunction restraining him from
interfering with the peaceful possession of the plaintiff. The said suit was dismissed as not pressed on 12.12.1981. The lower appellate court after
perusal of Exs. B-6 to B-l1 relating to these two suits it has answered point No. 5 in favour of the first defendant. Thus the lower appellate court
has reversed the finding of the trial court and set aside the decree in favour of the plaintiff. Therefore, the plaintiff Bajanai madam is before this
Court.
8. Thiru G. Masilamani, Additional Solicitor General for the appellant has raised the following three contentions:
1. The finding of the lower appellate court that the defendant No. 6 Anandachandrasekaran did not get any right to the suit property under the will
of Ramalinga Gramani under Ex. A-2, dated 2.4.1970 is erroneous. The constructions put by the lower appellate court on the will is apparently
wrong.
2. The lower appellate court''s finding on point No. 5 that the suit is barred by res judicata or in view of the decision in O.S. No. 211 of 1974. is
not wrong.
3. Similarly earlier suit O.S. No. 459 of 1980 which was for identical relief and dismissed as not pressed operate is not a bar to the maintainability
of the present suit is also in correct.
9. According to the learned Counsel for the appellant Mr. G. Masilamani, Additional Solicitor General though these points have not been
specifically and properly dealt with under point No. 5 by the lower appellate court hence he has to necessarily raise these points specifically in this
Court and establish that there is no res judicata and there is no bar also. In view of the earlier suits O.S. No. 211 of 1974 and O.S. No. 459 of
1980. The learned senior counsel Mr. T.R. Rajagopalan appearing for the respondent contended that in the second appeal the points involved for
decision as stated above by the learned Additional Solicitor General. Therefore, both of them advanced their arguments on the above three main
points only before this Court. Now we will take up the points urged in the second appeal.
10. Point No. 1 : The first point is that the Will excuted by Ramalinga Gramani by deed dated 2.4.1970 under Ex. A-2 did not confer any right on
the 6th defendant. Ex. A-2 with reference to the properties not covered by the will states as follows.
The lower appellate court has considered that the above provision is meant that the properties involved in the litigation and not included in the will
must be taken over by the son-in-law after conducting the litigation and spending for the same. The lower appellate court concluded that since
there was no litigation involved in respect of the suit property they were to be inherited by his daughters. Hence, the 6th de-fendant has no right to
the suit property.
11. This interpretation appears to be very unreasonable. The specific wording is that the properties not covered by the will should be taken by the
eldest son-in-law even if there was litigation. Admittedly, the suit property was not covered by the will. Hence, the 6th defendant has derived right
from the will in the suit properties. The learned Counsel for the respondent also did not seriously advance much arguments on this aspect.
12. Now, coming to the question of res judicata in view of the ex parte decree under Ex. B-6. Ex. B-6 shows that one Jerad Santhanasamy,
plaintiff obtained ex parte decree with costs. The relief mentioned in the judgment shows that the plaintiff obtained the ex parte decree against the
defendants etc. The. reliefs stated in the judgment are permanent injunction restraining the defendants and their agents the successors and servants
from interfering with the possession and enjoyment of the suit property by the plaintiff and his successor on title. There is no schedule attached to
the said judgment. In the judgment it is not seen that what is the property involved in the said suit. The next document is Ex. B-7. It is admittedly an
order in I.A. No. 3392 of 1978 dated 16.7.1979. In this document as well there is no mention about the property. Ex. B-9 is the written statement
in O.S. No. 211 of 1974. Only from this written statement we can gather that Ananda Chandrasekara Gramani got the suit properties involved in
the said suit under the will of Ramalinga Gramani, dated 2.4.1970 and the said Anandachandra Sekaran executed a registered settlement deed in
favour of Ramalinga Bajanai Madam. The property in the said suit is the property donated by Ananda Chandresekaran to Madam. It is also stated
in paragraph 4 that the defendants were in possession of the properties as the trustees of the madam. Therefore, we can assume that the suit
property in this case was the property involved in the earlier suit O.S. No. 211 of 1974.
13. But the question is whether the madam can be said to be a party in the said suit for the purpose of Section 11, C.P.C. Because for the purpose
of operation of res judicator the suit must be between the same or between the parties under whom they Or any of them claim. Exs. B-6 to B-8 do
not show that the Ramalinga Bajani Madam was not a party. On the other hand B6 shows that four persons Kahnian Packiri, Venu, Angalan,
Murugavenu alias Kathawarayan were de-fendants. Ex. B-6 does not show that they were representing the Bajanai Madam. B-7 and B-8 also do
not show that the aforesaid persons were representing the Bajanai Madam. But Ex. B-9 contains the statement that the four persons mentioned in
the cause title were trustees of the madam who were looking after the affairs of the Bajanai madam. It is also stated that the said madam is in
possession and enjoyment of the suit property. From the written statement we can presume that there was Bajanai Madam. There were four
persons looking after the interest of the Madam and the Bajanai Madam was in possession of the suit property. From this it will be very difficult to
hold that the bajanai madam was a party in the said suit. When there is specific statement that the Banjanai Madam was in existence. in the written
statement, it is clear that the four persons mentioned therein were in man-agers of the properties and the possession was only with the madam.
Inasmuch as the plaintiff has not filed the suit against the madam, it is very difficult to hold that madam was a party to the suit O.S. No. 211 of
1974. It may be that the four persons representing Madam in their capacity as the trustees might have interfered with the possession and enjoyment
of the suit property by the plaintiff in the said suit. But the declaration and injunction was only against the four individuals and not against the
Madam. The learned Counsel for the respondents when confronted with this position attempted to show that there was no Bajanai Madam in
existence at that time and the properties were settled in favour of the aforesaid persons. Therefore, subsequent successors in the office of the
Bajanai Madam will also be bound by the decision. In Ex. A-1, dated 6.4.1972 it is stated that the donation was for Ramalinga Nagar bajanai
Madam and for the said Madam in favour of the then trustees. When donation is specifically in favour of the Bajanai madam and possession has
been handed over to it and if the bajanai Madam is not shown as a party in the suit, the decision in the suit cannot bind the Bajanai Madam. I
cannot able to appreciate the learned senior counsel for the respondent because the Bajanai Madam is stated to be in existence in Pondicherry
Ramalinga Nagar, Ulavar herein vettomi, Pondicherry. The then trustees were also mentioned. Further there is a statement that as per the wishes of
his father-in-law the donation deed was executed. It implies that the father-in-law himself has desired the execution of the document in favour of
Bajanai Madam? and the Bajanai Madam was in existence even during the life-time of the father-in-law. Therefore, the contention of the counsel
for the respondents untenable.
14. The learned Counsel for the appellant next contended that Exs. B-1 and B-11 show that for identical relief with the case suit was filed. But
according to him the said suit was only to set aside the sale deed in favour of the 4th defendant Jerared Sandanasamy, the first defendant in the
present suit. The cause of action is stated to have arisen on 6.4.1972 when the donation deed Ex. A-1 was executed. But the present suit is for
declaration that the plaintiff is the absolute owner of the property. Further it is contended that the subject-matter in O.S. No. 459 of 1980 was the
sale deed executed in favour of the first defendant. But in the present suit the subject-matter is for declaring the plaintiff as the owner of the suit
property. The learned Counsel argued that Order 23, Rule 1(4), C.P.C. will get attracted only if the subject-matter is one and the same. 023, Rule
1(4), C.P.C. is as follows:
Where the plaintiff-
(a) abandons any suit or part of claim under Sub-rule(1), or
(b) Withdraws from a suit or part or 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.
Relying on Sub-rule (b) it is contended that the subject-matter means the bundle of facts and not relating to the property involved. The learned
Counsel for the appellant cited the following decisions in support of his contentions.
1. Pandillapalli Singareddi v. Yeddula Subba Reddi (1916) 4 L.W. 915. 2. Narayanaswami Udayan and Others Vs. Mannar, . Shadi Ram v.
Amin Chand AIR 1930 Lah. 937. 4. Vallabh Das Vs. Madan Lal and Others, . 5. Kaloot Sao and Another Vs. Mostt. (name not Known) and
Others, .
6. Kurji Jinabhai Kotecha Vs. Ambalal Kanjibhai Patel, .
15. In Pandillapalli Singareddi v. Yeddula Subba Reddi (1916) 4 1 W. 915, the first suit was filed by the plaintiffs when the mother-in-law of the
defendant Venkatammal was alive for declaration that the alienation by a settlement deed by Venkatammal in favour of the defendant making
several false recitals as to the defendant being an illatom son-in-law and so on was invalid and not binding on the. reversioners after
Venkatammal''s death. Venkatammal died in 1912 pending the first suit the plaintiffs withdraw the first suit. The second suit was filed for
declaretion of the invalidity of Venkatammal''s acts and for possession of the lands. The first suit was withdrawn without permission to file a fresh
suit.
16. In the second suit which was filed by the plaintiff in their capacity as vested reversioners while the former suit was filed in their capacity as
contingent reversioners.
17. The Full Bench of this Court has held that the cause of action and relief claimed in the second suit are substantially different from those in the
first suit. The Full Bench has held that the word ''matter'' has a larger meaning than ''cause of action''. But the matter in the second suit cannot be
held to be same when the cause of action is substantially different though the defence is the same. The Full Bench further upheld the decisions in the
following cases Krishna Behari Roy v. Brojeswari Chowdrance, L.R. 2 IA. 283, T.K. Ummatha v. T.K. Cheria Kunhamed I.LR 4 Mad. 308
Allunni v. Kunjusha ILR 7 Mad. 264 Ramaswami Ayyar v. Vythinatha Ayyar ILR 26 Mad. 760, which held that, where the causes of action are
different even in the dismissal of the first suit by the court after contest on the merits there will not be bar to the maintainability of the second suit on
a substantially different cause of action; even though the de-fences may be the same in the two suits.
18. In the case on hand, the causes of action is stated to have arisen on 6.4.1972 when the donation made by the 6th defendant in favour of the
plaintiff madam was executed and on 29.7.1981. When the other de-fendants attempted to interfere by putting up a fence in the suit property. The
cause of action for the ear-lier suit though stated to have arisen on 6.4. l972 the date of donation deed, actually O.S. No. 459 of 1980 relates to
the sale deed executed by the defendants 1 to 4 in favour of the 4th defendant in the said suit. The relief claimed in the present suit is for
declaration that the plaintiffis the absolute owner of the property mentioned in the schedule and consequential in-junction. The relief in the earlier
suit is for setting aside the sale executed by the defendants 1 to 4 in favour of defendant No. 4 and for consequential in-junction. (The 4th
defendant in the earlier suit is the first defendant in the present suit).
19. In the earlier suit, the matter i.e., the question or the cause of action was the execution of the sale deed in favour of the present first defendant
and the relief was to have that sale deed set aside. In the present suit, the cause of action is the donation'' deed which has conferred title on the
plaintiff. The relief is based on the donation deed. The defence, no doubt in both the suit is one and the same namely that the first de-fendant
claiming right under the sale deed executed in his favour. The above referred Full Bench has categorically held that where the causes of action are
different, even a dismissal of the first suit by the court after contest on the merits is no bar to the maintain-ability of a second suit, even though the
defences may be the same in the two suits"" this principle laid down by the Full Bench is squarely applicable to the present case.
20. In Narayanaswami Udayan and Others Vs. Mannar, , a single Judge of this Court has held that if the cause of action for the prior suit to
recover immovable property, treating the defendant as a trustee is different from the cause of action stated in the subsequent suit to recover
immovable property if the subsequent suit is based on allegation that the defendant was a mere trespasser. The subject-matter and the claim in the
two suits are different and the withdrawal of the former suit without permission of the court would not constitute a legal bar to the plaintiff for
maintaining the subsequent suit. The learned Judge has followed the principles laid down by the Full Bench referred to above.
21. In Shadi Ram v. Amin Chand and Ors. AIR 1930 Lah. 937, the facts are as follows:
The first suit was filed for cancelling the gift by Gur Devi to Amin Chand by the reversioners of Bhaumal. There was a compromise in the said suit
giving 4/5th of the gifted land to the reversioners of Bhau Mal who were the plaintiffs. The compromise decree was passed and 4/5th share was
given to the plaintiff. At that stage Gur Devi, who was not a party to the Compromise, filed an appeal challenging the compromise, as well as her
own gift in favour of Amin Chand. Then compromise decree was set aside and the suit was remanded to the Subordinate Judge and at that stage
the suit was withdrawn. Thereafter, Aminchand filed a petition for restoration of possession the gifted land. From the reversioners, Aminchand
secured back the possession of the gifted property. Thereafter the second suit was filed by the reversioners of Bhau Mal. They claimed 4/5th share
of land gifted to Amin Chand by Gur Devi after the death of Gur Devi The trial court held that the reversioners could no claim land as the suit was
barred by time appeal was preferred before the District Judge. One of the points raised was that the second suit was barred under Order 23, Rule
1. then the matter was taken to the Lahore High Court. A single Judge of the Lahore High Court has held that the cause of action is different in the
second suit, The previous suit was based on the gift, while part of cause of action, which the plaintiff had in the second suit was the restoration Of
the land to Amin Chand u/s 144, C.P.C. after the previous decree had been set aside by the remand order of the District Judge. The Full Bench
judgment in Surja Reddi v. Subha Reddi (1916) 39 Mad. 987 has been followed in the said case.
22. In Vallabh Das Vs. Madan Lal and Others, , the Full Bench judgment referred to above was accepted as correct. In the Supreme Court case,
the facts are that one Madanlal filed the suit for partition and separate possession. Dr. Madanlal filed the said suit against his adoptive father and
the cause of action was the division of status between Madanlal and his adoptive father and the relief claimed was for conversion of joint
possession into separate possession. In the second suit the relief claimed was for possession from one Vallabh Das who was also a defendant in
the earlier suit and who was said to be the adopted son of Prem Sukh. The first suit was with-drawn but liberty was given to file a second suit on
payment of some costs. But without payment of costs, the second suit, was filed against Vallabh Das who succeeded to Premsukh after his death.
The first suit was withdrawn after Premsukh died.
23. The Supreme Court found that the cause of action namely, the series of transactions which formed the basis of his title to the suit properties,
arose on the death of his adoptive father and mother. The factum and validity of adoption of Dr. Madhan Lal was challenged in both the cases. The
Supreme Court has observed that the adoption was not the cause of action in the first or in the second suit. It was merely an antecedent event
which conferred Certain rights on him. 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. The reasoning in the above case is squarely applicable to the facts of the present case.
24. In Kaloot Sao and Another Vs. Mostt. (name not Known) and Others, , the Division Bench of Patna High Court has categorically stated that
unless the cause of action for the two suits is the same the bar of Order 22, Rule 1(3) of the Code cannot be applied. In the said case, the first suit
was filed for possession without service of notice u/s 106 of the Transfer of Property Act. But the second suit was filed after the service of notice
u/s 106. The Full Bench decision of Madras High Court is followed in the said case also.
25. A single Judge of Gujarat High Court has held in Kurji Jinabhai Kotecha Vs. Ambalal Kanjibhai Patel, , that mere identity of some of the issues
in the two suits will not bring about identity of the subject-matter. In this case also, the Full Bench decision of Madras High Court has been
followed.
26. After considering the aforesaid decisions I am of the view that the cause of action for the two suits are different and the reliefs claimed are also
different.
27. The learned Counsel for the appellant has also cited the following decisions and contended that the bar under Order 23, Rule 1(4) applies only
where a second suit is filed after the withdrawal of the first suit. However, if the second suit is filed during the pendency of the first suit, the bar is
not attracted.
1. P.A. Muhammed v. The Canara Bank and an other AIR 1992 Ker. 852. Girdhari Lal Bansal Vs. The Chairman, Bhakra Beas Management
Board, Chandigarh and Others, .
A reading of the Order 23 Rule i4 (b) extracted in para 14 shows that it refers to permission to withdraw a suit with liberty to institute a fresh suit
after the first one has been withdrawn. Order 23, Rule 1 cannot be read so as to bar a suit which has already been instituted before the other suit
has been abandoned or dismissed.
28. The Learned Senior counsel for the respondent Mr. T.R. Rajagopalan contended that the bar under Order 23, Rule 1(4) of C.P.C. squarely
applies to the facts of the present case. The learned senior counsel relied on the following decisions.
1.Pandillapalli Sanga Reddi v. Yeddula Subba Reddi and two others ILR 39 Mad 987, B. Chenehuram Naidu v. Muhamed Bahuvuddin Sahib 63
M.L.J. 496 : 139 1. C. 476 : AIR 1933 Mad. 3. 3. Ram Bharose Vs. Baramdin and Others, . 4. Gubbala Suryanarayana and Another Vs.
Gadiyapu Ganesulu and Another, . 5. Gubbala Suryanarayana and Another Vs. Gadiyapu Ganesulu and Another, . 6. V. Seshi Ammal Vs. United
India Life Insurance Co., Ltd. and Others, . 7. Albert Judah Judah Vs. Rampada Gupta and Another, . 8. Order of the Holy Cross Vs.
Lonnappan Thattil and Another, .
29. The case in Pandillapalli Sanga Reddi v. Yeddula Subba Reddi and two others ILR 39 Mad. 987 : (1916) 4 L.W. 915. As I have already set
out the facts and proposition of law is out in the said case is rather helpful to the appellant than to the respondent.
30. B. Chenehuram Naidu v. Muhamed Bahuvuddin Sahib 63 M.L.J. 496 : 139 I.C. 476 : AIR 1933 Mad. 3. This is a case where the first suit
was filed without notice of termination of tenancy. Subsequently an-other suit after notice was filed. The bench of this Court has held that there was
no bar since the subject-matter was not same.
31. Ram Bharose Vs. Baramdin and Others, , is a case where the facts are that the first suit Was filed for recovery of possession of number of
plots from the co-sharers. The co-sharers were in possession of some of the plots as mortgagees. In the first suit the prayer was for possession of
3 bighas, 7 biswas of lands. The suit was withdrawn without permission to bring fresh suit. The second suit was filed on the similar cause of action.
The relief claimed was also for same. Therefore a single Judge of Allahabad High Court held that there was identity of cause of action as well as
identity of relief claimed. Hence, the second suit was barred: The learned Judge has also distinctly pointed out the meaning of subject-matter.
According to the learned Judge after referring to the Full Bench judgment of Madras High Court in Singha Reddi v. Subba Reddi A.I. R 1917
Mad. 512 and another judgment in Chenchuram Naidu v. Md-Bahuvuddin A.I. R: 1933 Mad. 3 gave the meaning of the subject-matter. The
subject-matter means series of cause of acts or transactions alleged to exist giving rise to the relief claimed. As we have already pointed out in the
case on hand, the cause of action for the present suit is different. The relief claimed is also different. Therefore, the said decision does not help the
respondent.
32. In Gubbala Suryanarayana and Another Vs. Gadiyapu Ganesulu and Another, , a single Judge of this Court has held that an adverse order in
execution petition also becomes final unless it was set aside. the person against whom such an order was passed cannot re-agitate the matter in a
subsequent suit. The contention raised in that case was that in the earlier suit there was no adjudication on merits, after investigations. That
contention was rejected. It was held that if a person chose to take advantage of a summary proce-dure, he must suffer its dis-advantage as well as
its benefits. It was also mentioned that the principle of constructive res judicata was also involved. We are not concerned with the principles of
constructive res judicata directly in the present case. We are considering the principle involved under Order 23, Rule 4, C.P.C.
33. Albert Judah Judah Vs. Rampada Gupta and Another, . The said case is also not helpful to the respondent. The first suit in the said case was
for declaration that he is entitled to act as Managing Director. The issue of new shares and allotment thereof were not valid, etc. One more suit was
also filed by the wife of the plaintiff and other shareholders on behalf of the shareholders of the company for declaration that the plaintiff in the first
suit was the Managing Director and injunction restraining the defendants from interfering with his right of management of the company. The two
suits were withdrawn. Thereafter another suit was instituted for declaration that the plaintiff was the holder of large number of ordinary shares and
he is alone entitled to the rights and the privileges attached to the shares that the transfer of shares in the name of the defendant was illegal, void and
inoperative. In the second suit, the Order 23, Rule 1(3) and Order 2, Rule 2 of the C.P.C., was raised. The learned single Judge of the Calcutta
High Court has observed that for the determination of the question one has to look to the substance of the two suits and not their form and
language only. We have to find out what the phrase ""in respect to the same subject-matter'' means. The subject-matter of a suit can only be
ascertained from the plaint filed. For the purpose of finding out the meaning of ""Subject-matter"" within the meaning of Order 23, Rule 1(3) it is not
necessary nor is it proper to look to the written statement. The imperative provisions of a plaint are amongst others, the facts constituting the cause
of action and the re-lief which the plaintiff claims. In other words, the plaint must state the reliefs claimed and the cause of action that entitles the
plaintiff to get the reliefs claimed. This indicates that the subject-matter of a suit can only be ascertained from the cause of action and the reliefs, set
out in the plaint. If the cause of action in the subsequent suit is different from the cause of action in the previous suit withdrawn, the two suits must
be held to be in respect of different subject-matter. The learned Judge further added that the two causes of action must not be different inform only
but in substance, In other words, the difference must not be be due to the clever draftsmanship of the counsel who rafted the subsequent plaint
whereby the same cause of action has been presented in different form. the learned Judge has further observed as follows:
It is die combination of facts, the concatenation of circumstances that give rise to a cause of action and a claim for relief. The addition of a new fact
to a state of existing facts may change the ""character of the suit and the right to relief. I am unable to accept the argument that for the purpose of
Order 23, Rule 1(3) each one of the bundle of facts jointly and severally should be treated as giving rise to the cause of action so that the subject-
matter of the suit is so extensive as to cover all claims that may arise from the proof of each single fact in such permutation and combination as can
be imagined. I do not think so. For the purpose of causes of action all the facts pleaded have to be looked at as a ""bundle"" that is in its collective
capacity as giving a right to a claim. Each fact cannot be looked at in solution, or the facts cannot be looked at in a different combination. If the
reliefs claimed in the subsequent suits though not expressly stated but was implicity in the previous claim by reason of the bundle of fact 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 suggersting it would But this is by the way.
The learned Judge has almost exhaustively given the definition of the word subject-matter. In paragraph 16, the learned Judge noticed the
differences between the earlier suit and the subsequent suit. In the first suit, the right of the plaintiff to act as managing director and the validity of
the issue of new shares and allotment there of were issues, In the subsequent suit, the declaration was that in respect of the plaintiffs holding 26752
ordinary shares and as consequence his entitlement to the right and privileges attached to the said shares in the name of the defendant Rampada
Gupta was illegal, void and inoperative. In the previous suit also there was a challenge to the validity of the issue of new shares and allotment
thereof. In the second suit also, the challenge to the transfer and allotment of shares to a particular individual is there. But yet the learned Judge has
held that there was no bar. The learned Judge has not decided the application of Order 2, Rule 2, C.P.C. in the said case.
34. That apart, the learned Judge has also accepted the contention that since there was injunction against the defendants restraining them from
selling the shares in the previous suits and that Would prove that the subject-matter in both the suits were the same. From the aforesaid view it is
clear that even though the subject-matter in both the suits are same, and when the cause of action plea and relief claimed are different, the bar of
Order 23, Rule 1 is not there. In my view this case helps the appellant and not the respondent.
35. The last case cited by the learned Counsel for the respondent is order of the Order of the Order of the Holy Cross Vs. Lonnappan Thattil and
Another, . This case is relating to the bar under Order 23, Rule 1(4). In the said case, the plaintiff filed a suit for declaration that the first plaintiff is
the trustee of the second plaintiff organisation and is the Director, superior and etc. and injunction restraining the defendants from interfering in any
way with the first plaintiff''s rights. The said suit was withdrawn. Another suit was filed for the following reliefs:
1. Granting decree of permanent injunction.
2. Restraining the defendants from interfering in any manner with the rights of the plaintiffs as Director, superior etc. of the second plaintiff
organisation.
The learned single Judge of the Kerala High Court after perusing the pleadings has held that the parties and relief sought for in both the suits are
same. But to make it appear that the present suit is different from the earlier suit, the plaintiffs have made certain statements in the plaint and also
impleaded certain new parties. But as we have found above, the facts of the case on hand are different. The cause of actions are not similar. It
cannot also be said that there is any camouflage in this case.
36. The learned Senior counsel for the respondent Mr. T.R. Rajagopalan raised another contention that even though the suit was dismissed as
withdrawn the bar of res judicata will apply. He cited a case in Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior
and Others, . The said decision is not helpful to him. The Apex Court has held that the principle underlying Order 23, Rule 1 should be extended in
the interests of administration of justice to cases of withdrawal of writ petition also. Further they have stated that the bar is not on the ground of res
judicata. Hence the said decision is not helpful to him. In Albert Judah Judah Vs. Rampada Gupta and Another, it is held that there is no res
judicata when the suit was not decided on merits but only withdrawn.
37. On a consideration of all the relevant facts and the authorities cited before me, I am of the view that the suit out of which the second appeal has
arisen is not hit by any bar contained in Order 23, Rule 1(4), C.P.C. It is also not hit by principle of res judicata u/s 1l,C.P.C.
38. I have already taken the view that the interpretationwithreference to the will put by the lowerappellate court is erroneous, the 6th defendant is
entitled to take suit property under the Will. Therefore, he has got title. It follows, therefore, that his connection to the Ramalinga Bajanai madam is
valid and the Bajanai Madam gets title to the suit property.
39. As regards possession also, there is evidence to show that Bajanai madam has been in possession of the trees and it sold the coconut trees to
P.W. 2. In as much the suit property is a vacant sites, the principle of possession follows title has to be applied in this case. The first defendant has
not shown his possession of the suit property. The courts below have simply informed possession since he had ex parte order injunction in the
earlier suit, without going into the question of actual possession. Since I have found that the defendants have no right over the suit property by
virtue of sale deed and found title in favour of the plaintiff, the plaintiff is entitled for injunction as prayed for. Hence, the judgment and decree of the
lower appellate court is set aside. The suit is decreed as prayed for. However, there will be no orders as to costs.
