OPINION
We agree with the conclusions 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 O. 23, R. 1 (3) of the Civil Procedure Code. The terms “subject-matter” and “the same matter” which occurred in the corresponding Sect. 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 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. Achutan Nayar and the decisions which followed it in Machana Uajhala Dikshatulu v. Gorugantulu Yaggamma and Sennava Reddiar v. Venkatarama Reddiar must be overruled.
M.RReference answered in the negative.