The limitation imposed by Order XXIII Rule 1(3) on the right of the plaintiff to file a fresh suit applies only when the causes of action and subject-matter in the suits are the same.

1. These two Second Appeals are connected and raise a common question of law, and hence are being disposed of by a common judgment. Both the suits as now framed are for declaration of title and recovery of possession of two buildings (shop building) with arrears of rent. The plaintiff had filed O.S. No. 26 of 1972 and O. S, No. 27 of 1972 for recovery of possession with arrears of rent. Since those suits were not preceded by a proper notice to quit under S.106 of the Transfer of Property Act, the plaintiff filed an application for permission to withdraw the suits. The trial court granted permission to withdraw 'the suits on payment of costs. The plaintiff did not pay the costs and therefore the suits were dismissed for default. The present suits were subsequently filed after issuing proper notices under S.106 of the Transfer of Property Act with the new prayer for declaration of title and for recovery of possession with arrears of rent. The main contention raised before me is whether the suits are barred under 0.23 R.1 (3) and S.11 of the Code of Civil Procedure. The courts below held against the defendant on this plea and decreed the suits as prayed for. Hence these appeals.

2. The contention that the suits are barred under S.11 CPC is intimately connected with the plea under 0.23 R.1 G). The suits were not decided on merits. S.11 CPC. postulates the adjudication of an earlier suit on merits. The two suits were dismissed for default. The suits were dismissed solely on the ground that costs directed were not paid. Therefore the question that falls for consideration mainly is whether the suits are barred under 0.23 R.1(3).

3. Under 0.23 R.1(3) where the court is satisfied that a suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. The Court can under Order XX11I R.1(4) award such costs as it thinks fit. In such cases where the plaintiff abandons any suit or part of claim or withdraws from a suit without the permission of the Court, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The question posed is, whether the plaintiff who fails to deposit costs awarded and allows the suit to be dismissed, is precluded from instituting any suit thereafter. In otherwords, what is the limitation imposed by Order XX11I R.1(4) on the right of the plaintiff to file a fresh suit. For a proper adjudication of the points at issue, it is necessary to correctly understand the meaning of the expression 'subject-matter' used in order XX11I R.1(3) and (4).

4. In this case it is admitted that the earlier suits, O.S. No. 26 of 1972 and O.S. No. 27 of 1972, were filed without a proper notice under S.106 of the Transfer of Property Act. A suit not preceded by such a notice has necessarily to fail for this technical defect. The question is when a suit is dismissed for default or when a suit is withdrawn without the permission of the Court, or where costs awarded for withdrawal was not paid, whether the plaintiff is precluded for ever from instituting a fresh suit. For this, the exact nature of the earlier suit, its cause of action and the subject-matter will have to be properly scrutinised before applying the bar under Order XX11I R.1 (3) and (4).

5. The earlier suits were for recovery of possession and for arrears of rent. They were filed without a proper notice to quit. Evidently, therefore, the plaintiff did not have a proper cause of action in those suits. The present suit is filed after the issuance of a notice to quit. By issuing this notice the plaintiff gets a cause of action to file the suit. The subject-matter of the earlier suit in the