Bhimalaxminarayan and Others vs Madamsetti Krishna

Shripat Rao, J.—This is a defendant''s appeal against the order of remand of the lower Court. The learned Single Judge has referred this appeal to the Division Bench.

The facts are somewhat interesting and a point of law regarding the construction of Section 31 Hy. C.P.C. : Order 2, Rule, 2, I. C.P.C., has arisen. The facts briefly are that respondent filed the present suit for damages for non delivery of 300 tins of groundnut oil stating that the current rate per maund was Rs. 8-5-10 more than the contract rate; and the transaction would have-given the plaintiff the suit amount as profit. The facts stated in paras. 1 and 2 of the plaint are that defendant 3 is the agent and defendants 1 and 2 are the owners of Sriram Rice and Oil Mills and defendant 3 on his behalf and on behalf of defendants 1 and 2 contracted to sell 650 tins of oil at the rate of Rs. 12-23 per maund. The plaintiff paid Rs. 6000 and odd towards the price of the said 650 tins and gave delivery of 260 tins of oil in as much as the defendants sold at plaintiff''s behest the said 260 tins of oil to Laxminarayan and Company and recovered Rs. 450 which amount was thus accrued due to the plaintiffs but has not been pad to him. The plaintiff in the provisos suit stated that he was entitled to the return of the whole of the price of Rs. 60.0 and odd which he paid to the defendants towards the contract of the purchase of 550 tins. He also alleged that in the sale which was made on his behalf to Laxminarayana and Company of the 250 tins of oil he has made a profit of Rs. 809.14-3. This-amount should also be paid to the plaintiff. The said suit was filed on 12th Aban 1355 F. The present suit dated 2nd Bahaman 1866 F is for the profit which plaintiff could have got if the 800 tins of oil would have been delivered as the contract rate by the defendants.

The question is whether there was breach of contract regarding these 300 tins of oil at the time of institution of the previous suit or not. In the previous suit there was an allegation that the contract, regarding the delivery of these 800 tins of oil was broken by the defendants and plaintiff therefore had prayed for the return of whatever purchase money that was paid towards the price of these 800 tins of oil. On these facts we have to judge whether the present suit for damages for profit which the plaintiff could have-got arises out of the same cause of action on which the previous suit was based, or not. If we come to the conclusion that the cause of action for the previous suit and the present suit was one and the same then the present suit would be barred under the provisions of Order 2, Rule 2, Civil P.C. Clause (1) of Order 2, Rule 2, lays, down that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Clause (3) provides that a poison entitled to more than one relief in respect of the same cause of notion may sue for all or any of such relief�s; but if he omits, except, with the leave of the Court, to sue for all such relief�s, ho shall not afterwards sue for any reliefs so omitted. The explanation to this order (rule?) also throws light on as to what is a cause of action. It says that for the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute one case of action. In our opinion, in the first suit the cause of action was the breach of contract by not delivering the 300 tins of oil and therefore the return of the price paid towards that quantity of oil and the same breach is the basis of the present suit for the purposes of damages. The cause of action is the breach of contract arising out of the non-delivery of 300 tins of oil and plaintiff was entitled to 2 reliefs for the said breach; one was the return of the purchase-money and the other was the claim by way of damages for the loss of profit which he could have made if the contract had been observed and duly performed. In this view of the facts, we are of opinion that in the former suit the plaintiff was entitled to both these reliefs and his omission to sue for damages for profit acts as a bar to the present suit u/s 31, H.C.P.C.

The lower Court relied upon Shridhar Mahadeo Rasal Vs. Godulal Jethmal, . In that case the plaintiffs had sued a mamlatdar for illegal distraint and recovery of arrears of rent, The first suit was for the recovery of the amount wrongly collected and the 2nd suit was for damages for loss of reputation of business It was held that these claims were founded on different causes of action although they arise from the same transaction, because one was regarding the loss of reputation and the other was for the actual amount paid. We think that this ruling is not on all fairs with the facts of the present case. In the present case before us, the previous suit not only include claims for recovery of price paid but also for actual profits which had accrued to plaintiffs on account of the sale of 250 tins of oil. Moreover, a tort to body or status is a different thing from a claim for damages arising out of an ordinary contract. Reliance was also placed on Sonukhushal v. Bahinibai Krishna AIR 1916 Bom. 310. This case also in our opinion, is not relevant. The fact to were that various, alienations were made to different persons on different dates by the deceased. In a suit by the heir challenging the alienations it was laid down that the plaintiffs can join all the alikeness in one suit but it was not obligatory upon him to do so, It is clear that the ruling refers mostly to provisions of Order 2, Rule 8, Bachelor J. while discussing what is meant by one cause of action expressed the opinion that back alienation in favour of an alienee is a different cause of action and it is not identical with the cause of action arising from some other alienation in favour of a different alienee. The Hon''ble Justice also laid down a proposition stating that

where the question is whether the causes of action In two suits are different or identical, one of the most valuable tests of this identity is that the same evidence will maintain both actions.

Reviewing the facts of the present case in the light of the said proposition we do not see any reason to differ from the view which we have expressed above. From the facts in the appeal before us it is clear that the former suit included a claim for the recovery of profit which has accrued to the plaintiff from the sale of 250 tins of oil, and the evidence which would have been necessary to prove this claim would more or less be the same for assessing damages for profits due on the breach and nondelivery of the other 300 tins of oil. Hence, our opinion stands good in the light of the proposition and test propounded by Batchelor J. in the above ruling. It may be argued that the evidence to support the claim for return of the price of the 300 tins of oil will not be the same as the evidence to support the claim for damages. But this argument overlooks the fact narrated above that in the previous suit there was also a claim for the recovery of profits, evidence regarding which would be the same as required for substantiating the claim for damages regarding 300 tins of oil. In Payana Reena Layana Saminatha Chetty v. Panalana Palaniappa Chetty 18 C.W.N. 617 it has been laid down that cause of action is different from the transaction giving rise to the cause of action and one transaction may give rise to several causes of action. It is clear that thus ruling has no bearing inasmuch as we have come to the conclusion that the cause of action for both the suits was one and the same. In view of the particular facts of the case before us it is not necessary to discuss in detail the facts mentioned in Payana Reena Layana Saminatha Chetty v. Panalana Palaniappa Chetty 18 C.W.N. 617 as to how and why their Lordships of the Privy Council came to the conclusion that the arbitration and the subsequent execution of promissory notes in consonance with the terms of the arbitration are two different transactions reference has been made to Anderson Wright and Co. v. Kalagarla Surjinarayan 12 Cal. 339. In that case the two learned Judges, Garth C.J. and Wilson, J. differed in their opinion and under the law prevailing in the Calcutta High Court the appeal was dismissed and the result is that he said ruling cannot be much relied upon but the arguments advanced by both the learned Judges can be looked into. The view of Garth, C.J., expressed in this ruling was considered in the Full Bench case of Duncan BrOrs. Co. v. Jetmul 19 cal. 372 (F.B) and the Full Bench came to the conclusion that the view expressed by Garth C.J. was not correct. It also laid down that the view expressed by Wilson J. should prevail. It was held that where a contract for the sale and purchase of goods is broken by the purchaser in part by refusal to take delivery and in part by refusal to pay for goods delivered both broaches having occurred before any suit is brought the vendor is debarred by Section 13, Civil P.C. from bringing two suits against such purchaser, his claim arising out of one cause of action and based on one and the same contract. Reference may be made particularly to the opinion of Petheram, C.J. in which he has held that the whole of such claim arising out of such contract must be included in one section and Prinsep, J. has held that expression cause at action is to be construed with reference to the substance rather than to the form of the action.

Looking at the facts of the appeal before us from the point of view of the above test it is clear that plaintiff did not include the whole claim arising out of contract in the previous suit. There was no reason why the plaintiff should not have included the present claim for damages for the loss of profits in the previous suit when he included a claim for profits regarding the 250 tins of oil. In the previous plaint, plaintiff has mentioned in para. 5 that if the defendants do not give delivery of the oil as per terms of the contract, a separate suit will be filed against the defendants for that purpose. It is clear that under the provisions of Section 81, Hyderabad Civil P.C., Sub-clause (3) no permission was obtained from the Court for filing the suit intended and mentioned in para. (6). Hence, in our opinion, the plaintiff is not entitled to file the present suit. The intention of the plaintiff is also clear from the last 2 or 3 lines of para. 2 of the said plaint in which he said that if the defendants give delivery of the 3OO tins of oil plus the extra amount he is prepared to accept delivery; which means that he had claimed the extra amount of profit which would have accrued to him if the contract regarding 300 tins of oil was to be fulfilled. Taking into account all the circumstances of the case we are of the opinion that there was one and the same cause of action for the previous suit as also for the present suit and the present suit is therefore barred by the provisions of Section 31, Hyderabad Civil P.C. We therefore accept this appeal, reverse the judgment of the Nazim, Sadar Adalat, Modak, and uphold the judgment of the District Judge, Wanaparthi, and dismiss the plaintiff''s claim with costs throughout.

S. Ali Khan, J

No doubt one transaction may give rise to different causes of action and it is also true that Section 31, Hyderadad Civil P.C., is designed to exhaust all the relief in respect of one cause of action and not to the inclusion in one and the same action of different causes of action even though they arise from the same transaction, as was hold by their Lordships of the Privy Council in an analogous case, Payana Reena Layana Saminatha Chetty v. Panalana Palaniappa Chetty 18 C.W.N. 617 still in the case before us the non-delivery of 800 tins of oil occurred before the previous suit. This breach of contract gave two reliefs to the plaintiff, viz, to demand the return of the prepaid price of the 300 tins and also sue for damages, viz, generally the difference in price at the time of contract and the time of breach. There appears to me no valid reason why he should not have included the claim for damages in the previous suit. I there fore allow this appeal with costs throughout.