The term "subject-matter" in Order XXIII Rule 1(3) of the Code of Civil Procedure, 1908 includes the cause of action and not merely the relief claimed in the plaint.

LALIT MOHAN SHARMA, J.

1. This second appeal by the defendants is direct-ed against the decree of their eviction from certain premises in the town of Patna, fully described in the plaint. They are tenants under the plaintiff-respon-dent, who is the owner of the property. The plaintiff earlier filed T. S. 87 of 1958 for eviction of the defendants on the grounds permissible under the Bihar Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as the Act). A decree was passed in favour of the plaintiff by the first appellate court and the defendants filed S.A. 618 of 1960 in the High Court. No notice under Sec.106 of the Transfer of Property Act had been served by the plaintiff be-fore filing the suit and a point was taken by the defendants on the basis of the Full Bench decision in Niranjan Pal V/s. Chaitanyalal Ghosh (AIR 1964 Pat 401) (FB) that the suit was not maintainable. The second appeal was taken up for hear-ing on 3-2-1966. When the point was taken, a prayer on behalf of the plaintiff was made for permission to withdraw the suit. The defendants did not raise any objection to the prayer which was allow-ed and the suit was permitted to be with-drawn. The plaintiff, thereafter, served a notice under Sec.106 of the T. P. Act on the defendants, and after the period mentioned in the notice was over, the present suit was filed.

2. The defendants filed similar written statements raising several pleas, out of which, I may at this stage, in view of the limited argument of Mr. R. S. Chatterjee on their behalf, mention only one, namely, that the suit is not maintainable.

All the issues in the suit were decided by the trial court against the de-fendants and in favour of the plaintiff ex-cepting the issue of maintainability of the suit. The court held that although the suit was not barred by res judicata, but it was not maintainable in view of the provisions of Order XXIII Rule 1 of the Code of Civil Procedure (hereinafter referred to as the Code). The plaintiff, thereafter, appealed. The lower appellate court decided all the issues against the defendants including the issue of main-tainability of the suit and passed a decree for their eviction.

3. Mr. R. S. Chatterjee, appearing for the appellants, contended that as the earlier suit had been withdrawn without liberty to institute a fresh suit, the present suit must be held to be barred un-der sub-rule (3) of O. XXIII Rule 1 of the Code, which reads as follows:

(3) - "Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), 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."

He said that the term subject-matter in Order XXIII Rule 1 (3) of the Code must be interpreted to mean the disputed pro-perty or, in any event, the decree asked for, in the plaint; and they in the two suits are identical. The argument is that there is no reason to interpret the term subject-matter as including the cause of action for the suit, Mr. Chatterjee compared the language of Order XXIII R. 1 (3) of the Code with that of Order IX Rule 9 wherein it is stated that if a suit is dismissed under Order IX Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action". As the legislature has, in its wisdom, refrained from using the words the same cause of action in O. XXIII Rule 1 (3) of the Code, sub-rule (3) should not be interpreted as referring to the cause of action.

4. In Niranjan Pal V/s. Chaitanyalal Ghosh (AIR 1964 Patna 401) (FB), it was held that the lease must be deter-mined by the landlord by service of notice under Sec.106 of the T. P. Act before he can maintain an action for the tenants eviction under Sec.11 of the Act and as the plaintiff in that case had not served such a notice, the suit was premature. The Full Bench decision applied squa