The subsequent suit for eviction would not be barred if the cause of action was not the same as that of the earlier suit, as interpreted in the context of 'subject matter' in Order 23 Rule 1 (3) (b) of the CPC.

1. Wazir Abhey Singh had filed a suit seeking petitioners eviction from a shop situated at Below Gumat, Jammu inter alia,on the grounds that the petitioner had committed three defaults of two months each in the payment of rent within a period of 18 months rendering him liable to eviction under Section 11(i) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 and the respondent-plaintiff reasonably required the shop for his use and occupation to start the business of Dry Fruit therein. The petitioner had questioned the maintainability of the suit, urging that the respondent had filed a suit at an earlier occasion also which was later dismissed by Learned Ist Additional District Judge, Jammu refusing permission to the respondent to file a fresh suit.

2. The trial court while adjudicating issue Nos. 8 and 9, rejected petitioners objection and held the subsequent suit maintainable holding that the cause of action in the subsequent suit was recurring and distinct from the one on which the earlier suit had been filed.

3. It is this order dated 2.03.2007 of the learned trial Court which has been questioned by the petitioner-tenant in this revision petition.

4. Learned Counsel appearing for the petitioner submits that the grounds on which a suit for ejectment may be founded by a landlord against a tenant in terms of Section 11 of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 were available to the respondent-landlord at the time he had filed his earlier suit. His omission to plead these grounds in the earlier suit would thus debar him from maintaining a fresh suit on those grounds particularly when permission sought by the respondent to file a fresh suit had been declined by the trial court. Supporting his submission, learned counsel refers to Mehtab Singh vs. Tilak Raj Arora reported as AIR 1989 Punjab and Haryana 12, Gurinderpal v. Jagmittar Singh, (2004) 11 SCC 219, Ranen Roy v. Prakash Mitra, (1998) 9 SCC 689 and Janakirama Iyer v. Nilakanta Iyer, AIR 1962 SC 684.

5. Ms. Tabasum Mughal, learned counsel for the respondent, on the other hand, submits that the subsequent suit of the respondent-plaintiff was based on a different cause of action than the one on which the earlier suit had been filed. She says that the grounds of personal necessity and tenants committing defaults in the payment of rent furnishes recurring cause of action to a landlord. According to the learned counsel, the expression "subject matter" appearing in Order 23 Rule 1 (3) (b) of the Code of Civil Procedure needs to be construed as the "cause of action" and not the subject matter itself as suggested by learned counsel for the petitioner. Learned counsel submits that regardless of the simplicitor withdrawal of the earlier suit, the subsequent suit on recurring cause of action was maintainable and the provisions of Order 2 Rule 2 and Order 23 of the Code of Civil Procedure were not attracted to the facts of the present case.

6. I have considered the submissions of learned counsel for the parties and gone through the judgments referred by them.

7. The expression "subject matter" appearing in Order 23 Rule 1 (3) (b) of the CPC needs to be viewed in the background of the "cause of action" and not the "subject matter" itself. This question is no longer res integra. It had fallen for consideration before this Court too on an earlier occasion in Smt. Raj Bhatia Versus Smt. Chander Kanta, reported as 1995 SLJ, 103. Relying upon judgments of the High Court and Honble Supreme Court of India, this Court had taken the view that the term "subject matter" would mean plaintiffs cause of action, And regardless of the suit property being same, the subsequent suit would not be barred if the cause of action was not the same as that of the earlier suit. It would be advantageous to refer to what was said by Honble Supreme Court of India in this context in Vallab Dass v. Madan Lal, AIR 1970 SC 987.

"....Rule 1, Order 23, code of Civil Procedure entitled courts to

Click Here to Read the rest of this document