Achuta Menon v. Achutan Nayar And Ors.

1. Prior to the institution of the present suit, the plaintiff had instituted another, viz., Original Suit No. 189 of 1893, against these same defendants who are contesting this suit. In that suit he sought to compel these defendants to surrender certain plots of land on receiving from him the value of improvements, if any, made by them. He then alleged that the said defendants held the lands as tenants under the lease of the 10th October 1880, which was to enure for twelve years and which was granted to the first defendant by the late Zamorin, to whose ' stanom ' or dignity the lands are attached. As to the right to claim the surrender of the lands, the plaintiff relied on a demise by the same Zamorin, dated 28th July 1892. The present Zamorin, who was also one of the defendants in the case, contended that the demise of the 28th July 1892 was not granted under circumstances which, in law, rendered it binding on him as the present holder of the stanom. The present contesting defendants denied their liability to surrender the lands, and alleged that the tenancy under which they held was a permanent one, or that they were entitled to hold for a further period.

2. The plaintiff on or about the 12th December 1893 withdrew the suit without leave to sue again. Having, however, on the 16th idem obtained a demise from the present Zamorin himself, the plaintiff brought this, suit for the surrender of the same property alleging it, in this suit also, to be in the occupation of the defendants under the lease of 10th October 1880 relied on by the plaintiff in the prior suit.

3. The lower Appellate Court was of opinion that the plaintiff was precluded by Section 373 of the Civil Procedure Code from maintaining the present suit, and it was accordingly dismissed. It was urged before us on behalf of the plaintiff that the lower Appellate Court was wrong in holding that the present suit was for the ' same matter ' within the meaning of Section 373 of the Civil Procedure Code as that involved in the previous suit, and that consequently that Section ought not to be held applicable.

4. Now the term ' matter ' in a context like that in the above-mentioned Section means clearly

" the subject of legal action, consideration, complaint or defence or the fact or facts constituting the whole or a part of a ground of action or defence"

(See Anderson's ' Dictionary of Law'). The point, then, for determination is whether there exists in the present instance the identity of ' matter ' required by law in order to make the Section applicable,

5. Now, taking first for convenience sake the defence or the facts constituting the basis of the right set up by the contesting defendants, the case is doubtless the same now as it was in the earlier suit.

6. Turning next to the nature of the plaintiff's claim or the facts constituting the basis of his right and its infraction, or, in short, his cause, of action, it is equally clear that there is identity at all events with regards to that portion thereof which relates to the alleged liability of the defendants to surrender the lands, since the contract by virtue of the provisions of which it was alleged they had to surrender the property is one and the same, viz., the lease of 10th October 1880 granted by the late Zamorin. As to the remaining portion of the plaintiff's own case, no doubt, there is some difference, inasmuch as the demise relied on in the former suit was one granted by the late Zamorin, while that now relied on is one granted by the present Zamorin. The question whether, in these circumstances, the matter constituting the cause of action is the same or different is one of considerable difficulty, and must depend on the facts of the two suits as pointed out by WEST, J., in Girdhar Manordas v. Dayabhai Kalabhai I.L.R. 8 Bom. 174--a case relating to Section 13 of the Civil Procedure Code, in which Section also the term ' matter ' seems to be used in the sense explained above. In that case WEST, J., observed that the authorities cited therein showed that " where there has been a real separateness of the legal relations and of the evidence necessary to establish it in two successive suits between the same parties, the second is not barred by the first," Girdhar Manordas v. Dayabhai Kalabhai I.L.R. 8 Bom. 174. In Shridhar Vinayak v. Narayan Valad Babaji 11 B.H.C.R. 224 the same learned Judge expressed himself in connection with that very point thus: " The matter must be regarded as essentially different when it did not originate in the same transaction and when it constituted, as averred, a wholly different right in the plaintiff giving rise to a different duty on the part of the defendant, " or again, as WEST, J., himself put the question in another aspect of it in Naro Hari v. Anpurnabai I.L.R. 11 Bom. 160 "the cause of action is to be regarded as the same if it rests on facts which are integrally connected with those upon which a right and infringement of the right have already been once asserted as a ground for the Court's interference " and Haji Hasam Ibrahim v. Mancharam Kaliandas I.L.R. 3 Bom. 137. What is the conclusion which the facts in the present case suggest in the light of the above statements of the law? Now, in the present, as well as in the previous suit the allegation that the defendants held under the self-same lease of 1880 was an essential part of the plaintiff's cause of action, Consequently in our opinion, it cannot properly be said that there is no integral connection whatever between the plaintiff's allegations in the two suits, that there is a complete difference, between the cause of action alleged before and that alleged now, and that the transaction of 1893 between the plaintiff and the present Zamorin, which is the only distinguishing circumstance relied on, imposed on the defendants a duty wholly or to any extent different from that to which they were subject before that transaction took place. It follows, therefore, that that part also of the matter in issue in the two suits which had or has reference to the plaintiff's case by itself is substantially the same within the meaning of the authorities cited above, and Section 373 must, therefore, in our opinion, be held to be applicable. Suppose, however, that the plaintiff's cause of action in the previous suit was different from that in the present suit. Nevertheless, the suit must be held to be unsustainable for the simple reason that the identical defence raised by the contesting defendants in the two suits is of such a nature as would, if it had been established in the previous suit, have precluded the plaintiff from maintaining this suit even on the demise of 1893. It is scarcely necessary to say that one of the objects of Section 373 is to protect a defendant from being harassed by repeated litigation with reference not only to the allegations constituting the plaintiff's case, but also as to those which constitute the defence or any part of it. The defendants here are, therefore, under the Section in question, entitled successfully to contend that the plaintiff having once, without obtaining the necessary leave, withdrawn from the contest respecting the tenancy set up by them is now prevented from agitating that question in this suit, or, in other words, his claim completely fails.

7. For these reasons, agreeing with the conclusion arrived at by the lower Appellate Court, we dismiss the second appeal with costs.