The cause of action and relief claimed in the second suit must be the same as in the first suit to be considered brought in respect of the same subject matter.

Sadasiva Iyer, J.

1. We agree with the conclusions of Sadasiva Aiyar, J. in the order of reference.

2. The question is whether the second suit can be regarded as brought in respect of the same subject-matter as the first suit within the meaning of Order 23, Rule 1(3) of the Civil Procedure Code. The terms "subject matter" and "the same matter" which occurred in the corresponding Section 373 of the old Code have not been defined, and must, we think, be construed strictly in a penal provision of this character. Without attempting an exhaustive definition of all that may be included in the term "subject matter" we are of opinion that where, as in the present case, the cause of action and the relief claimed in the, second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject matter as the first suit. This was expressly decided in Gopal Chandra Banerji v. Purna Chandra Banerjee (1898) 4 C.W.N. 110 with which we agree. It follows that the plaintiff in the second suit is not debarred from contesting the allegations made by the defence in the first suit. We think that the decision in Achuta Menon v. Achutan Nair (1897) I.L.R. 21 M. 35 and the decisions which followed it in Machana Uajhala Dikshatulu v. Gourgantulu Yaggamma (1910) M.W.N. 782 and Sennava Reddiar v. Venkatachala Reddiar (1915) 2 l.w. 177 must be overruled.