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Calcutta High Court
Taggas Industrial Development Ltd vs Sewnarayan Khubchand And Anr on 11 August, 2025
Author: Sugato Majumdar
Bench: Sugato Majumdar
OD 8+9
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
CS/218/2024
IA NO: GA/1/2024, GA/3/2024
TAGGAS INDUSTRIAL DEVELOPMENT LTD
VS
SEWNARAYAN KHUBCHAND AND ANR
WITH
CS/219/2024
IA NO: GA/1/2024, GA/3/2024
SOMNATH ENCLAVE PVT LTD
VS
SEWNARAYAN KHUBCHAND AND ANR
BEFORE:
The Hon'ble JUSTICE SUGATO MAJUMDAR
Date:11th August, 2025.
APPEARANCE:
Mr. Mainak Bose, Sr. Adv.
Mr. Sabyasachi Sen, Adv.
…for the plaintiff
Mr. Rajarshi Dutta, Adv.
Mr. Avijit Dey, Adv.
…for the defendant no. 1
2Mr. Sakya Sen, Sr. Adv.
Mr. Avirup Chatterjee, Adv.
Mr. Rishov Das, Adv.
…for def. no. 2.
The Court:- In both the suits similar applications are filed, both of which are
numbered as GA No. 3 of 2024. The contents of the applications are the same, both
being applications praying for rejection of the corresponding plaints. Accordingly,
the applications were heard together and disposed of by this common order.
Both the applications are filed on behalf of the defendant no. 2 praying for
dismissal of the suit and/or rejection of the plaints.
Sum and substance of the pleading is that the instant suit has been instituted
by the plaintiff primarily for a declaration that the lease deed between the defendant
no. 1 and the petitioner herein is not determinable and, consequently, the right, title
and interest of the plaintiff over the suit property is not determinable. A further
declaration is being sought that the defendants including the present petitioner
having right, title and interest to create any right in respect of any third party in any
part or portion of the property. It is contended that previously CS 138 of 2013 was
filed by the plaintiff claiming identical relief as that of the present suit. A subsequent
suit being Title Suit No. 174 of 2015 was also filed by the plaintiff with identical
reliefs. Both the suits were withdrawn without any liberty to file a fresh suit for the
self-same subject-matter of plaint. It is further contended that there is no disclosed
3cause of action in the present suit. On the aforesaid grounds, it is pleaded that the
plaints should be rejected.
The parties exchanged their affidavits.
The learned Counsel for the defendant no. 1 argued in the line of pleading
that the principal reliefs claimed in the prior suit being CS No. 138 of 2013 are
similar to prayers (a), (b) and (c) of the instant suits. Similarly, the relief claimed in
prayers (b) and (c) of TS No. 1741 of 2015 are exactly similar to prayers (a) and (c) of
the instant suits. While withdrawing the previous suits, liberty to file a fresh suit
were not taken in both the occasions which warrants dismissal of the suits and/or
rejection of the plaints.
Learned Counsel for the defendant argued that for application of the bar
under Order 23 Rules 1 and 41(4) of the Code of Civil Procedure, identity of the
subject matter of the suits is essential and not the cause of action; even though there
were different cause of actions in all the three suits, all of them were based on the
same subject matter, namely the nature of the right created under the lease deed
and whether the same is determinable and, consequently, the right of the plaintiff
as a transferee with the defendant no. 1. Learned Counsel referred to H.N.
Jagannath & Ors. Vs. State of Karnataka & Ors. [(2018) 11 SCC 104].
Learned Counsel for the plaintiff argued, on the other hand, that the plaintiff
withdrawn both the suits under specific circumstances and none of the issues raised
in either of the suits were considered or decided on merit. It is further submitted
4that cause of action of the instant suit arose in October, 2024 by subsequent act or
omission of the defendants. In view of that, it is clear that cause of action in both the
suits are not the same. Learned Counsel for the plaintiff referred to Vallabh Das
vs. Dr. Madan Lal & Ors.[ 1970 (1) SCC 761] to substantiate his argument that
suits have different cause of actions though the same subject matter, by itself, do not
offend the provision of Order XXIII Rule 1 of the Code of Civil Procedure, 1908.
I have heard the rival submissions.
It was canvassed by the defendant that the word “subject matter” used in
Order XXIII Rule 1 is different and distinct from the concept of cause of action and
it was also canvassed that the subject matter is the same in all the suits. Although
relied upon H.N.Jagannath case (supra), the same was decided on different
factual arrays. In Vallabh Das‘s case (supra), it was specifically observed that
the expression “subject matter” is not defined in the Civil Procedure Code which
reads as follows:
“The expression “subject-matter” is not defined in the Civil Procedure
Code. It does not mean property. That expression has a reference to a right
in the property which the plaintiff seeks to enforce. That expression
includes the cause of action and the relief claimed. Unless the cause of
action and the relief claimed in the second suit are the same as in the first
suit, it cannot be said, that the subject-matter of the second suit is the
same as that in the previous suit.”
5
Subsequently, in N.R.Narayanswamy vs. B.Fancis Jagan [(2001) 6
SCC 473] the Supreme Court of India observed that Order 23 Rule 1(4)(d)
precludes the plaintiff from instituting any fresh suit in respect of such subject
matter or such part of the plaint which the plaintiff has withdrawn. In a suit for
eviction of a tenant under the Rent Act on the ground of bona fide requirement,
even though the premises remain the same, the subject matter which is the cause of
action may be different. The Bench referred to the decision and specific observation
of the Supreme Court of India in Vallabh Das‘s case (supra) and reiterated the
same interpretation. It is clear from the aforesaid decisions that the word “subject
matter” refers to cause of action and not merely the physical property itself.
There is no cavil that while considering an application for rejection of the
plaint, periphery of the plaint should not be transgressed. In other words, prima
facie reading of the plaint is the only exercise to be done to decide on the issue.
In the instant case, the suit is based on a subsequent cause of action which
arose subsequent to withdrawal of earlier suits. Veracity of such claim or such
pleading can only be decided on appreciation of evidence after trial. However, at this
stage, it is manifest from a plain reading of the plaint that the suit is based on a
subsequent cause of action which arose on 30th October, 2024 when the plaintiff
came to learn that the defendant no. 2 was proposing to construct a multi-storied
building in the subject property including the portion in which the plaintiff is in
occupation as lessee.
6
In view of the foregoing discussions, this Court is of the opinion and
conclusion that the issue of cause of action whether barred or not cannot be decided
at this stage without aid of evidence. Prima facie, the plaint discloses the subsequent
cause of action. Therefore, the instant applications for rejection of the plaint is not
tenable. Accordingly, the applications are disposed of.
Fix on 09/09/2025 for hearing of GA No. 1 of 2024.
(SUGATO MAJUMDAR, J.)
S.Chandra
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