Arumugham Chettiar and Others vs Mariappan Chettiar

Horwill, J.—The defendant sold a piece of land to the plaintiff and in his sale deed failed to disclose some prior encumbrances. The

mortgagees, whose debts had not been disclosed, brought suits for sale, with the result that the property that had been sold to the plaintiff and was

actually in his possession was brought to sale in execution of one of the decrees, and the plaintiff himself purchased the property through a

benamidar, Kaliyanandi Chettiar. Instead of bringing a suit for damages as a result of his having been compelled to pay the decree debt, he falsely

pleaded in O.S. No. 521 of 1930 that Kaliyanandi Chettiar had purchased this land and had dispossessed the plaintiff. The District Munsiff found

that the plaintiff''s statements of fact were false, but he nevertheless gave a decree because a breach of the covenant had occurred and the plaintiff

had suffered damages. In appeal, the Subordinate Judge rightly pointed out that the plaintiff''s case, as it stood, was a false one and that his suit had

either to be dismissed or the lower Court would have to allow the plaintiff to amend his plaint. The Subordinate Judge did not say, and could not

say, that the District Munsiff should have suggested to the plaintiff that his plaint should be amended and that if the plaintiff had followed up the

suggestion, the amendment should have been allowed. The amendment of the plaint could not have been allowed; for if it had, it would have altered

the whole nature of the suit. That suit having been dismissed, the plaintiff has brought the present suit on the true cause of action, namely, his having

been compelled to pay a sum of money to the mortgagee in order to prevent his dispossession. It is now contended by the defendant that because

of the prohibition in Order 2, Rule 2, the plaintiff''s suit must be dismissed, as in the prior suit he should have put forward the very claim that he has

put forward now.

Mr. Sesha Aiyangar for the appellants has placed considerable reliance on Rajah Bahadur Shiv Lal v. Rajee Vappa Pampanna (1908) 1 I.C.

319, in which it was held that if a number of covenants of a contract are broken, the breaches of that contract may be sued on in the same suit, and

that if the plaintiff sued on one cause of action only, he is prevented by Order 2, Rule 2 from bringing a fresh suit on the other causes of action.

There can be no doubt at all that the principle there laid down was correct; but it can only be applied to cases where the breaches of the several

covenants in the contract occur in the course of the same transaction. If, in the present case, the defendant had covenanted to give peaceful

possession and enjoyment to the plaintiff and at the same time had guaranteed that the land was free from encumbrances, and the plaintiff had

afterwards been dispossessed, then it would have been incumbent on him to have filed a suit on the breach of both the covenants for peaceful

possession and for a title free from encumbrances. If however the two covenants were broken on two different occasions, then there will have

been two causes of action and two suits would be maintainable. In the present case* there was only one covenant - or at any rate only one

covenant has been referred to in the judgments of the Courts below and in the arguments of the learned Counsel for the appellants, namely, the

covenant that the land was free from encumbrances. There are, however, two distinct and independent events referred to in the two suits. In the

first suit the plaintiff stated that he had been dispossessed, and his dispossession was a cause of action; while in the second suit he stated that at a

time anterior to the date on which he had formerly said that he was dispossessed, he was compelled to pay off the mortgagee''s claims. There were

thus two causes of action, although they arose out of breaches of the same covenant. As Mr. Sesha Aiyangar has himself pointed out, the mere fact

that there are encumbrances which have not been disclosed does not give a vendee a cause of action. It is only when he is dispossessed or is

compelled to pay some money that he ought not to have been called upon to pay, that a cause of action arises. There were therefore two distinct

causes of action in the two suits.

This is sufficient to dispose of the appeal; but it has been argued that the test to be applied is whether the plaintiff could have filed one suit on the

two causes of action. Even if this is the test the appellant would fail; for the plaintiff clearly could not have done this, as the facts alleged in the two

suits were entirely inconsistent with one another. He could not, in the same suit, have said that Kaliyanandi Chettiar had purchased the land and

that he had been dispossessed and in another paragraph have said that he purchased the land himself and was never dispossessed.

It is therefore clear that the two claims could not have been tried together in the same suit. The present suit was therefore maintainable and this

appeal is accordingly dismissed with costs.