JUDGMENT : Sathish Ninan, J. The suit for specific performance, with an alternate prayer for return of advance sale consideration, was dismissed by the trial court. The plaintiff is in appeal. 2. Ext.A1 agreement dated 31.05.2010 was entered into between the plaintiffs and defendants 1 to 3 for the sale of the plaint schedule property to the plaintiff. The total sale consideration fixed was Rs.135 lakhs. An amount of Rs.40 lakhs was paid on the date of Ext.A1, towards advance sale consideration. The period fixed for performance was four months. The plaint schedule property belonged jointly to defendants 1 to 4; the first defendant is the mother, and she is entitled to 70%, and defendants 2 to 4, who are her sons, are entitled to 10% shares each. The 4 th defendant was not a party to Ext.A1 agreement. It was the term of the agreement that defendants 1 to 3 would cause a partition deed to be executed along with the 4 th defendant, whereunder, the plaint schedule property would be got allotted exclusively to defendants 1 to 3. According to the plaintiff, defendants 1 to 3 failed to honour the agreement. Though defendants 1 to 4 entered into a partition deed, in contravention of the terms of Ext.A1, a portion of the property was allotted to the 4 th defendant. He conveyed a portion of such property to defendants 5 and 6. The first defendant-mother conveyed her share under the partition to her another son, the 7 th defendant. 3. On 11.11.2010, defendants 2 and 3 conveyed a portion of the property to the plaintiff. On coming to know about the attempt of the defendants to alienate the remaining property in breach of the agreement, the plaintiff filed a suit as OS 677/2010 for a prohibitory injunction not to alienate the property to strangers. Subsequently, after the expiry of the period for performance fixed under Ext.A1, the present suit was filed seeking specific performance, with an alternate prayer for return of the advance sale consideration. It was alleged that, after the conveyances in his favour by defendants 2 and 3, the balance advance consideration with defendants 1 to 3 is Rs.17 lakhs. The suit OS 677/2010 was withdrawn, with leave of the Court, to prosecute the suit for specific performance. 4. It was alleged that, after the conveyances in his favour by defendants 2 and 3, the balance advance consideration with defendants 1 to 3 is Rs.17 lakhs. The suit OS 677/2010 was withdrawn, with leave of the Court, to prosecute the suit for specific performance. 4. Defendants 1 to 3 contended that the suit is barred under Order II Rule 2 of the Code of Civil Procedure (CPC). It was further contended that the plaintiff was not ready and willing to perform the agreement. The 4 th defendant contended that the agreement for sale would not bind him or his interest over the property. Defendants 5 and 6 claimed to be bona fide purchasers for value. 5. The trial court found that the plaintiff failed to prove his readiness to perform the agreement and held that he is not entitled for the relief of specific performance. Regarding the alternate prayer for return of advance sale consideration, it was found that an amount of Rs.17 lakhs, being part of the advance sale consideration, is liable to be returned. However, it was held that the suit is barred under Order II Rule 2 CPC. Accordingly, the suit was dismissed. 6. We have heard the learned counsel on either side. 7. Before this Court, the parties confined their arguments to the finding of the trial court on the bar of the suit under Order II Rule 2 CPC. 8. The suit for specific performance is barred under Order II Rule 2 CPC, in the light of the earlier suit for prohibitory injunction, is the contention. Order II Rule 2 reads thus: - “ 2. Suit to include the whole claim. -(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim .- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (2) Relinquishment of part of claim .- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs .- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.” For our case what is relevant is R.2(3). As per the provision: (i) There must be a cause of action. (ii) More than one relief could be claimed on that cause of action. (iii) In the suit on that cause of action, the plaintiff omits some relief/s. (iv) He does not seek leave of the court to sue for such omitted reliefs at a later stage. (iv) In the event as above, the plaintiff cannot subsequently institute a suit for the omitted reliefs. 9. As is evident from the above, to find out whether the suit is barred under Or.II R.2, what is relevant is the “cause of action”. Decisions are legion explaining the meaning of “cause of action”, and we do not consider it necessary to elaborate on the same. The Apex Court in Rajasthan High Court Advocates Association Vs. Union of India ( AIR 2001 SC 416 ) held, “ The expression 'cause of action' has acquired a judicially settled meaning. In the restricted sense, 'cause of action' means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously, the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.” 10. In the present case, when the defendants attempted to alienate the property to third parties in violation of Ext.A1 agreement, a suit was filed for prohibitory injunction against alienation. In the said suit, should the plaintiff have sought the relief of specific performance also, is the question. In the present case, when the defendants attempted to alienate the property to third parties in violation of Ext.A1 agreement, a suit was filed for prohibitory injunction against alienation. In the said suit, should the plaintiff have sought the relief of specific performance also, is the question. If the answer is ‘yes’, then the present suit would be barred under Or.II R.2. 11. The Apex Court in Cuddalore Powergen Corporation Ltd. v. Chemplast Cuddalore Vinyls Limited and Anr. (2025 SCC OnLine SC 82), analysed in extenso about the “cause of action” in a suit for specific performance and a suit for prohibitory injunction against alienation. The Apex Court concluded that, when the plaintiff alleges that the defendant- vendor is attempting to alienate the property to a third party, it is an allegation of breach of the agreement. The breach gives a cause of action to the plaintiff to sue for reliefs including specific performance. If upon such cause of action, the plaintiff chooses to institute a suit solely for a prohibitory injunction against alienation, he is bound to seek leave of the Court in terms of Order II Rule 2(3) to institute a subsequent suit for specific performance. On his failure to seek for such leave, he will be, under the provision, precluded from instituting a subsequent suit claiming the relief of specific performance. 12. In Cuddalore Powergen Corporation Ltd. (supra) , the Apex Court took note of its earlier judgments in Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd. [ (2013) 1 SCC 625 ] and Vurimi Pullarao v. Vemari Venkata Radharani [ (2020) 14 SCC 110 ], wherein the plaintiff had notice of the defendant’s refusal to perform the contract even prior to the institution of the first suit for injunction, and also the judgments in Inbasagaran v. S. Natarajan [ (2015) 11 SCC 12 ] and Rathnavathi v. Ka0vita Ganashamdas [ (2015) 5 SCC 223 ], wherein the plaintiff became aware of such intention of the defendants not to perform the agreement, only after the institution of the first suit. It was held that, in Virgo Industries and Vurimi Pullarao above, even at the time of institution of the suit for injunction it was open for the plaintiff to seek for specific performance on the very same cause of action, and whereas in the latter cases, the cause of action for the institution of a suit for specific performance was not available at that time. So also, the Apex Court explained that, in the Cuddalore Powergen Corporation case, the injunction sought was against interfering with the peaceful possession and enjoyment of the property, and the allegation was not one of breach of the agreement for sale. It was held that, on the said cause of action, the plaintiff could not have maintained a suit for specific performance, and hence the bar under Order II Rule 2 did not apply to the subsequent suit for specific performance. 13. In the present case also, the cause of action pleaded for the institution of the suit for prohibitory injunction was, the alleged attempt on the part of the defendant to alienate the property in breach of the agreement. The said cause of action enabled the plaintiff to seek for specific performance also. The plaintiff having omitted to seek leave of the court to sue later, for the relief of specific performance, apparently the suit for specific performance is barred in terms of Order II Rule 2(3); but then, in the case at hand, there is yet another aspect of significance. 14. The suit for prohibitory injunction was withdrawn, with liberty in terms of Order XXIII Rule 1(3). The application filed by the plaintiff as IA No. 82/2011 was allowed by the Court as per Ext.B2 order. The first suit for prohibitory injunction having been withdrawn with leave in terms of Order XXIII Rule 1(3), would the bar of Order II Rule 2(3) apply to the subsequent suit for specific performance filed on the very same cause of action? Will such permission granted under Order XXIII Rule 1(3) efface the bar under Order II Rule 2(3) for a subsequent suit filed upon the same cause of action, seeking additional/other reliefs? The interplay between Order II Rule 2(3) and XXIII Rule 1(3) is to be considered. 15. Order XXIII Rule 1(3) reads thus:- “ 1. Will such permission granted under Order XXIII Rule 1(3) efface the bar under Order II Rule 2(3) for a subsequent suit filed upon the same cause of action, seeking additional/other reliefs? The interplay between Order II Rule 2(3) and XXIII Rule 1(3) is to be considered. 15. Order XXIII Rule 1(3) reads thus:- “ 1. Withdrawal of suit or abandonment of part of claim .- (1) xxxxx xxxxx (2) xxxxx xxxxx xxxxx (3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) 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 or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.” The provision enables the plaintiff to withdraw a suit with liberty to institute a fresh suit in respect of the very same subject matter under certain contingencies. Presently we are not concerned about the grounds available for grant of such leave. 16. What does the expression “subject-matter”, occurring in Order XXIII Rule 1(3) refer to? Does it mean “property”? Could it be understood as referring to the “cause of action” for the suit? 17. In Vallabh Das v. Madan Lal and Ors. ( AIR 1970 SC 987 ), the Apex Court held thus:- “..... 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. …..” The Apex Court held that the words “subject-matter” does not mean “property”, but it includes the “cause of action” and the relief claimed. In Singha Reddi v. Subba Reddi (AIR 1917 Madras 512) a Full Bench of the Madras High Court referring to the word “subject-matter” as occurring in Order XXIII Rule 1(3) held: - “..... …..” The Apex Court held that the words “subject-matter” does not mean “property”, but it includes the “cause of action” and the relief claimed. In Singha Reddi v. Subba Reddi (AIR 1917 Madras 512) a Full Bench of the Madras High Court referring to the word “subject-matter” as occurring in Order XXIII Rule 1(3) held: - “..... 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 Banerjee v. Purna Chandra Banerjee 4 CWN 110 with which we agree. …..” In B. Chenchuram Naidu v. Muhammad Bahavuddin Sahib (AIR 1933 Madras 3) the Court while deliberating on the meaning of the word “subject-matter” occurring in Order XXIII Rule 1(3), relied on the observation in Rakhmabai v. Mahadeo Narayan ( AIR 1917 Bom 101) , that, “subject-matter” means, “the series of acts or transactions alleged to exist giving rise to the reliefs claimed”; indicating that, it includes the “cause of action”. In Rakhmabai (supra) the court proceeded to hold thus: - “The same result arises if “subject matter” is to be taken to be “the cause of action” in the sense in which it is usually understood, namely, the bundle of facts which have to be proved in order to entitle the plaintiff to relief. In that sense the word “subject matter” was understood by the Madras High Court in Achuta Menon v. Achutan Nayar (1898) ILR 21 Mad 35 , and by the Calcutta High Court in Kamini Kant Roy v. Ram Nath Chuckerbutty (1893) ILR 21 Cal 265 , in cases arising under section 373 of the code of 1882.” In K.S. Bhoopathy and Ors. v. Kokila and Ors. [(2005) 5 SCC 458] , the Apex Court, referring to Order XXIII Rule 1(3)(b) observed that the court must be satisfied with the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. In Neelakanta Pillai Bhargava Panicker and Ors. [(2005) 5 SCC 458] , the Apex Court, referring to Order XXIII Rule 1(3)(b) observed that the court must be satisfied with the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. In Neelakanta Pillai Bhargava Panicker and Ors. v. Madhavakurup Dasappan Pillai and Ors. (ILR 2007 (2) Ker. 97), this Court held, “the subject matter mentioned in sub-rule 3 of Rule 1, evidently includes the cause of action as well”. Referring to the judgment of the Apex Court in Bhoopathy's case (supra) this Court held :- “..... Clause (b) of Sub-rule (3) contains the mandate to the court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. …..” The statement of objects and reasons of the CPC Amendment Act, 1976, also indicates that the word “subject matter” occurring in Order XXIII Rule 1(3) includes the “cause of action”. The relevant portion reads thus: - “ Clause 77—Sub-clause (i) .— Rule 1 of Order XXIII, as it now stands, provides for two kinds of withdrawal of suit, namely (i) absolute withdrawal, and (ii) withdrawal with the permission of the Court to institute a fresh suit on the same cause of action . The first category of withdrawal is governed by sub-rule (1) and second category is governed by sub-rule (2). Experience shows that the use of the word “withdrawal”, in relation to both the categories of withdrawals, creates a confusion. The rule is being amended to avoid such confusion. It is proposed to make a specific provision to the effect that a suit cannot be withdrawn by the next friend acting on behalf of the minor without the leave of the Court. It is further provided that where an application for such leave is made, it shall be accompanied by an affidavit of the next friend as well as a certificate of the pleader to the effect that the withdrawal of the suit is for the minor's benefit.” This indicates that our understanding regarding the expression “subject matter”, as occurring in Order XXIII Rule 1(3), conforms to the legislative intent. 18. 18. From the above discussions it is evident that the term “subject-matter”, as occurring in Order XXIII Rule 1(3), includes “cause of action”. In other words, when a suit is permitted to be withdrawn in terms of Order XXIII Rule 1(3) a fresh suit could be filed on the same cause of action. 19. Now we proceed to consider the effect of the withdrawal under Order XXIII Rule 1(3), on the first suit. The Allahabad High Court in Behari Lal Pal v. Srimati Baran Mai Dasi (ILR (1895) 17 All 53) referring to the similar provision obtaining under the former Civil Procedure Code of 1882 (Act No. XIV of 1882) held: - “..... Where a suit is withdrawn under s. 373 with permission to bring a fresh suit the effect of such permission is to leave matters in the position in which they would have stood if no such suit had been instituted. …..” It was held that, on such withdrawal, it is as if there was no such suit at all. The court relied on the judgments of the Madras High Court and of the very same court in Venkata Shetti v. Ranga Nayak [ILR (1882) 10 Mad 160], Bakhsh v. Imam Bakhsh [ILR 1875 (1) ALL 324], Mul Chand v. Bhikari Das [ILR 1885 (7) ALL 624] . In Paramanand (Dead) Subs. By L.Rs. v. The Prescribed Authority (Munsiff West), Meerut and others (2001 All LJ 2277) the court, referring to the earlier judgments of the Allahabad and Calcutta High Courts which expressed a similar view held: - “..... In the case of Bihari Lal Pal v. Smt. Baran Mai Dasi, it was held that where a suit is withdrawn with permission to bring a fresh suit, the effect of such permission, is to leave parties in the same position in which they would have been if no such suit had been instituted. Similarly a Full Bench of Calcutta High Court in the case of Becharam Choudhuri v. Puran Chandra Chatterji, held that when a suit was allowed to be withdrawn with leave to bring a fresh suit under Order 23 of the Civil Procedure Code it should be regarded as never brought. It is available for no purpose. It does not save or give fresh start to limitation nor does it afford a fresh cause of action. It is available for no purpose. It does not save or give fresh start to limitation nor does it afford a fresh cause of action. Learned counsel for the petitioner further invited the attention of the Court to the provisions of Order 23 Rule 2 of the Code of Civil Procedure which is reproduced below : “any fresh suit instituted on permission granted under the last preceding rule the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.” The above sub-rule clearly lays down that the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. From the above decision it is thus clear that the effect of the withdrawal of suit is that the parties are left in the same position which they had occupied if no such suit had been instituted. Even where the Court grants leave to file a fresh suit or proceeding for the same cause of action, the withdrawn suit has no existence in the eye of law. It is available for no purpose and parties are relegated to the same position which they had occupied before the fresh suit was brought. …..” As could be noticed, it was observed that the withdrawn suit has no existence in the eye of law. Reference was also made to Order XXIII Rule 2 which provided that the fresh suit shall be bound by the law of limitation in the same manner as if the first suit was not instituted at all. Similar is the view expressed in Sukumar Banerjee v. Dilip Kumar Sarkar and ors. ( AIR 1982 Cal 17 ) , Bhimangouda v. Sangappa Irappa Patil and Ors. (AIR 1960 Mys 178) 20. In K.Sivaramaiah v. Rukmani Ammal (2004 (1) SCC 471) , the Apex Court, noticing on the facts of the case that the earlier suit was withdrawn with liberty to file a fresh suit, held, “Once the suit has been permitted to be withdrawn all the proceedings taken therein including the judgment passed by the trial court have been wiped out.” Therefore, the effect of the withdrawal of a suit with leave of the Court in terms of Order XXIII Rule 1(3) is that, there has been no such suit at all. 21. 21. Having held that the resultant position after withdrawal of a suit under Order XXIII Rule 1(3) is that there was no suit at all, necessarily, the bar under Order II Rule 2 cannot arise for the subsequent suit. In Jagadambal and Anr. v. Minor Sundarammal by next friend, Ponnusami Chettiar and Ors. (AIR 1941 Madras 46), the court observed, “Order XXIII Rule (1) lays down a principle which is an exception to the general rule that a fresh suit cannot be filed on the same cause of action.” Similar is the view expressed in K.E.A.K.A. Sahib & Co. v. K.M.Adamsa (ILR 1924 (2) Rang 66) . In Ghulam Muhammad Khan v. Nur Khan and another (AIR 1917 Lah 414), it was held that the bar under Order II Rule 2 is removed by the order under Order XXIII granting permission to withdraw with liberty to file a fresh suit. The Apex Court in Gurinderpal v. Jagmittar Singh [ (2004) 11 SCC 219 ] held that when leave to withdraw the suit is granted in terms of Order XXIII Rule 1(3), the bar under Order II Rule 2 will not operate against the subsequent suit. The Court held, “Having heard the learned counsel for the parties, we are satisfied that the judgment of the High Court as also of the first appellate court cannot be sustained to the extent to which the bar enacted under O.2 R.2 CPC has been applied. The provisions of O.2 R.2 CPC bar the remedy of the plaintiff-appellant and, therefore, must be strictly construed. The order of the trial court dated 15-06-1994 passed in the earlier suit, extracted and reproduced hereinabove, has to be read in the light of the statement of the plaintiff-appellant recorded by the court on that very date. The plaintiff- appellant had clearly stated that he was seeking leave to withdraw the suit with the liberty of filing a fresh suit. The trial court recorded that the suit was being dismissed as withdrawn “in view of the statement of the plaintiff”. The plaintiff- appellant had clearly stated that he was seeking leave to withdraw the suit with the liberty of filing a fresh suit. The trial court recorded that the suit was being dismissed as withdrawn “in view of the statement of the plaintiff”. A conjoint reading of the order of the court and the statement of the plaintiff, clearly suggests that the suit was dismissed as withdrawn because the plaintiff wanted to file a fresh suit, obviously wherein the plaintiff would seek the decree of specific performance and not of a mere injunction as was prayed for in the suit which was sought to be withdrawn. In the subsequent suit, the first appellant court was not right in forming an opinion that liberty to file the fresh suit was not given to the plaintiff in the order dated 15-06-1994. That finding of the first appellate court ought not to have been sustained by the High Court.” This was later followed by the Apex Court in Sucha Singh Sodhi (D) thr. L.Rs. v. Baldev Raj Walia and Ors. [ (2018) 6 SCC 733 ] 22. To sum up, when a previously instituted suit is withdrawn with the leave of the Court in terms of Order XXIII Rule 1(3) to institute a fresh suit, the bar under Order II Rule 2 will not operate against the subsequent suit filed seeking additional/other reliefs. 23. In the case at hand, the earlier suit was withdrawn with the leave of the court in terms of Order XXIII Rule 1(3). Ext.A21 is the application and Ext.B2 is the order. The said order remained unchallenged. We are not on the correctness of the said order. Suffice to notice that the order granting leave to withdraw the suit with liberty to file fresh suit in terms of Order XXIII Rule 1(3) has become final. 24. The trial court dismissed the suit solely for the reason that the suit is barred under Order II Rule 2 CPC. The earlier suit for prohibitory injunction, OS 677/2010, was withdrawn with the leave of the Court in terms of Order XXIII Rule 1(3) CPC. Hence the latter suit for specific performance with the alternate prayer for return of advance sale consideration is not barred under Order II Rule 2 CPC. The finding of the trial court to the contrary is set aside. 25. Hence the latter suit for specific performance with the alternate prayer for return of advance sale consideration is not barred under Order II Rule 2 CPC. The finding of the trial court to the contrary is set aside. 25. Coming to the merits of the claim, the execution of Ext.A1 agreement is not in dispute. Under Ext.A1, defendants 1 to 3 agreed to convey the plaint schedule item 1 property in favour of the plaintiff for a total sale consideration of Rs.135 lakhs. An amount of Rs.40 lakhs was paid under Ext.A1 agreement, towards advance sale consideration. Thereafter defendants 2 and 3 conveyed portions of the property to the plaintiff. It is the case of the defendants that the plaintiff was not ready to perform the agreement since he did not have sufficient funds with him. The trial court on discussing the evidence exhaustively, concluded that the plaintiff failed to prove that he had the sufficient financial capacity or source to go ahead with the agreement. It is not attempted to urge or demonstrate before us that the finding of the trial court as above is not correct on the materials. Before us, it is rather conceded that the plaintiff is seeking only the alternate relief for return of money. 26. It is not in dispute that, after taking into consideration the amounts paid by the plaintiff and making proportionate deductions for the value of the property conveyed to the plaintiff, a further amount of Rs.17 lakhs remains with defendants 1 to 3 as advance sale consideration. It is not attempted to contend otherwise. But for the bald plea of the first defendant that she had sustained damages due to non-performance of the contract, there is no evidence to prove the same. Defendants 1 to 3 are liable to return the said amount of Rs.17 lakhs with interest. The first defendant being no more, her legal heirs would be answerable for her liability to the extent of the assets devolved on them from her. Considering the prevailing rate of interest in banking transactions, we are of the opinion that grant of interest at the rate of 9% per annum from the date of suit till the date of decree, and thereafter at the rate of 6% per annum, will be just and reasonable. In the result, this appeal is allowed. Considering the prevailing rate of interest in banking transactions, we are of the opinion that grant of interest at the rate of 9% per annum from the date of suit till the date of decree, and thereafter at the rate of 6% per annum, will be just and reasonable. In the result, this appeal is allowed. The decree and judgment of the trial court are set aside. The plaintiff is granted a decree for realisation of an amount of Rs. 17 lakhs with interest at the rate of 9% per annum from the date of suit (03.01.2011) till date of decree, and thereafter at the rate of 6% per annum from defendants 2 and 3 jointly and severally and from their assets, and also from the assets of the first defendant that has devolved upon defendants 2, 3, 4, 7, and respondents 8 to 10, in their capacity as the legal heirs of the deceased first defendant. The plaintiff shall also be entitled for proportionate costs throughout.