# VALIJABH ~AS v. DR.,MADAN T,AL & ORS

- **Citation:** [1971] 1 S.C.R. 211
- **Court:** Supreme Court of India
- **Decided:** 1971
- **Bench:** J. C. Shah, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/valijabh-as-v-dr-madan-t-al-ors-4993
- **Pages:** 4

## Headnote

!
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 allegation 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 defendants' 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 conversion 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.

## Text

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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 allegation 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 defendants' 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 conversion 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
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.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. 1.
/
The Judgment of the Court was delivered by
Hegde. J. One Prem Sukh was the owner of the suite properties.
Parvatibai was his wife They had no children. Prem
Sukh !lifted some of his properties to his wife on June 14, 1943.
Dr. Madan Lal's (1st respondent in this appeal) case is that Prem
Sukh adopted him on July 12, 1943. Thereafter it is said that
Prem Sukh adopted on April 10, 1946, the appellant Vallabh Das.
On April 29, 1946, Dr. Madan Lal instituted a suit for a declara·
tion that he is the adopted son of '?rem Sukh and for partition and
possession of his share in the family properties.
Prem
Sukh
denied the adoption pleaded by Dr. Madan Lal.
On the other
hand he alleged that Vallabh Das was his adopted son. In view
of that allegation, Vallabh Das was added as a supplemental
defendant in that suit. No relief was
claimed against him.
During the pendency ·of that suit Prem Sukh died.
Thereafter
Dr. Madan Lal 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 pays the de- ·
fondants' costs of that suit before instituting a fresh suit. There-·
after Parvatibai bequeathed her properties to Dr. Madan Lal and
died soon after: The suit from which this appeal arises was
brought on November 29, 1951 even before the costs of Vallabh
Das (the appellant herein) in the previous suit had been paid.
Vallabh Das resisted the suit on vario11s grounds.
He conten<l;ed
that Dr. Madan Lal was not adopted by Prem Sukh: even_.if he
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VALLABH DAS v. MADAN LAL (Hegde. J.)
213
had been adopted, that adoption was not valid under the Benaras
&:hool of Hindu law by which the parties were governed as Madan
Lal was a married man on July 12, 1943 and lastly the suit as
brought is not maintainable as Dr. Madan Lal had not paid the
costs due to him under the order in the previous suit before instituting the present suit. Both the trial court as well as the High
Court in appeal rejected every one of the contentions taken by
Vallabh Das and decreed the suit as prayed for. Thereafter this
'lppeal was brought after obtaining special leave from this Court.
The factum of the adoption has been upheld both by the
trial court as well as by the High Court. There is evidence to
support that findin$.
No convincing circumstance was brought
to our notice requirmg us to review the evidence over again. This
Court ordinarily does not interfere with concurrent findings of fact.
We see no justification to disturb the concurrent finding of fact
arrived at by the trial court and the High Court.
As regards the validity of the adoption, the contention of
\! allabh Das that the adoption was invalid rests on the plea that
on July 12, 1943, Dr. Madan Lal was a married man. This plea
has been negatived by the trial court as well as by the High Court.
They have come to the conclusion that Dr. Madan Lal was not a
married man on that date and that he was married subsequently.
Here again there is no good ground for us to interfere with the
finding of fact reached by those courts.
The only contention that was seriously pressed before us on
behalf ol the appellant was that the suit under appeal is not maintainable as the condition precedent imposed by the court in the
earlier suit naipely the payment of defendants' costs by the pl11intiif before bringing a fresh suit on the same c11use of action had
not been complied with. We do not think that this contention
is well founded.
Rule 1, Order 23, Code of Civil Procedure 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 subjectmatter of that suit on such terms as it thinks fit. The terms imposed on the plaintiff in the previous suit was that before bringing
a fresh suit on tlie same cause of action, he must pay the
costs of the defendants. Therefore we have to see whether that
condition governs the institution of IM present suit. For deciding
that question we hav'e to see whether the suit from which this
appeal arises is in respeet of tho same s1.1bjoct·matter that was
in litlaation In the previous suit. Tho oxprenlon "11.1bjoct-mattor"
is not defined in tho Civil Procedure Code. It doo1 not mean pro·
perty. That expression has a reference to a rightln tho property
. 214
SUPREME COURT REPORTS
[1971] 1 S.C.R.
which the p1amtiff seeks to enforce. That expression includes the
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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 that in the previous suit. Now coming to the
case before us in the first suit Dr. Madan Lal was seeking to enforce his right to partition and separate possession. In the present
B
suit he seeks to get possession of the suit properties from a trespasser
on the basis of his title: In the first suit the cause of action was
the division of status between Dr. Madan Lal and his adoptive
father and the relief claimed was the conversion of joint possession into separate possession. In the present suit the plaintiff is
seeking possession of the suit properties from a trespasser.
In C
the first case his cause of action arose on the day he got separated
from his family. In the present suit 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. It is true that both in the previous suit as· well as in the
present suit the factwn and validity of adoption of Dr. Madan Lal
came up for decision. But that adoption was not the cause of
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action in the first nor is it the cause of action in- the present suit.
It was merely an antecedent even which conferred certain rights
on him. Mere identity of some of the issues in the two suits does
not bring about an identity of the subject matter in the two suits.
As observed in Rakhma Bai v.
Mahadeo Narayan('), the expression "subject matter" in Order 23, Rule 1, Code of Civil ProE
· cedure means the series of acts or transactions alleged to exist
giV:ing rise to the relief claimed. In other words "subject matter"
means the bundle of facts which have to be proved in order to
entitle the plaintiff to the relief claimed by him,
We accept as
·correct the observations of Wallis C.J. in Singa Reddi v. Subba
Reddi(2), that where the cause of action and the· relief claimF
ed in the second suit are not the same as the cause of action and
the mlief claimed in the fir't suit, the second suit cannot be considered to have been broaght in respect of the same
subject
matter as the first suit.
For the reasons mentioned above this appeal fails and the
same is dismi(ssed with costs.
G.C.
(!) I.LR. 42 Born. 1155.
(2) I.L.R. 39 Mad. 98i.
Appeal dismissed.