A suit struck off for non-appearance does not operate as res judicata for the defendant but bars the plaintiff from suing on the same cause of action. A subsequent actual alienation of property constitutes a new cause of action, distinct from a prior claim based on the intention to alienate.

Judgement

APPEAL from a decree of the Chief Court (May 16, 1884). The proceedings are stated in the judgment of their Lordships, the point for decision being whether the suit was barred as res judicata.

Mayne, and Arathoon, for the Appellants, contended that the suit was barred, both under sect. 13 and also under sect. 103 of Act X. of 1877. Reference was made to Hunter v. Stewart (4 De G. F. & J. 168, 178.), a leading case, in which the decision was given by Lord Westbury, and also to Thakoor Shankar Buksh v. Dya Shankar and Others (Ante, p. 66.).

The Respondents did not appear.

The judgment of their Lordships was delivered by

LORD WATSON —

In this case the Defendants in the original suit, who bring this appeal, are (1) Mussummat Chand Kour, widow of the late Kalian Singh, and (2) Perak Singh, to whom the first Appellant in 1879 made over by

Law. Rep. 15 Ind. App. 156 ( 1887- 1888)

Mussummat C hand Kour V. Partab Singh 61

deed of gift the fee of her deceased hus-bands estate. The Plantiffs and Respondents are the four nearest agnates of Kahan Singh, and the present suit was instituted by them for the purpose, inter alia, of obtaining a declara tion that the widows gift is inoperative, and cannot affect their reversionary rights. It is admitted that Chand Kour has merely a widows interest in the estate; and it is also admitted that Perak Singh, in whose favour she executed the deed of gift, is a stranger to the succession. The only point which has been argued, on behalf of the Appellants, is that the suit is barred by certain proceedings in a suit which was begun and concluded, in the Court of the Judicial Assistant Commissioner, before the date of the deed of gift. That action was instituted by two of the Respondents, Partab Singh and Gopal Singh, and their plaint prayed for a declaratory decree, and for an injunction forbidding alienation of the moveable and immoveable property of the deceased, which was then in possession of his widow. The plea in bar can only affect these two Respondents, and cannot exclude the other Respondents from obtaining a declaratory decree in this suit which will have the effect of protecting the reversionary interests of themselves and of their lineal descendants.

The proceedings which followed upon the plaint in the suit referred to were these A defence was lodged for the widow, and on the 7th of October, 1878, the Judicial Assistant Commissioner pronounced this order, which has become final "As the Plaintiff has not appeared, though waited for up to the rising of the Court, and as the Defendant, who is represented by her agent, denies the Plaintiffs claim, it is ordered That the case be struck off under sect. 102, Civil Procedure Code."

The provisions of sects. 102 and 103 of Act X. of 1877 require therefore to be considered. The dismissal of a suit in terms of sect. 102 was plainly not intended to operate in favour of the Defendant as res judicata. It imposes, however, when read along with sect. 103, a certain disability upon the Plaintiff whose suit has been dismissed. He is thereby precluded from bringing a fresh suit in respect of the same cause of action. Now the cause of action has no relation whatever to the defence which may be set up by the Defendant, nor does it depend upon the character of the relief prayed for by the Plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the Plaintiff asks the Court to arrive at a conclusion in his favour.

The Judge of first instance, the Assistant Commissioner, held that the cause of action set forth in the present plaint is not the same with that disclosed in the plaint of 1878. The Commissioner differed from that view, but it was upheld by two Judges of the Chief Court of the Punjab upon appeal. Their Lordships are of opinion that the decision of the Assistant Commissioner and of the Chief Court is in accordance with the statute. The ground of action in the plaint of 1