Chunnilal vs Amir Ahmedi Bee and another

Manohar Pershad, J.—This appeal on behalf of the plaintiff a out of a mortgage suit filed by him for the (sic)covery of principal and interest amount.

The facts are: The respondents on 1942 through a registered mortgage deed mortgaged the suit property with the appellant a sum of H. S. Rs. 11,000/- agreeing to pay mortgage amount together with interest pay every month and compoundable every within five years, with a further stipulation if they fail to pay interest for six month appellant would be entitled to recover the and of interest or the whole of the amount not standing the stipulation for payment in years. The respondents made default in pay of the monthly instalments of interest. The appellant filed a suit in the Subordinate Judge Court, Secunderabad on 24-6-1950 for rec(sic) of interest amount. This suit was decre(sic)parte. Thereafter the appellant filed the sent suit for recovery of the principal amo(sic) 1-9-1952. The respondents in their written (sic)ment, apart from the other objections, p(sic) that the suit was barred under O. 2, R. 2, (sic). The Court below accepted the contention respondents and dismissed the suit. The plaintiff has now come up in appeal.

Sri Rangachari, the learned counsel for the appellant argued that the Subordinate Judge Ted in applying the provisions of O. 2, R. 2, C. P. C. to the facts of the case in dismissing the suit without calling for the record and see(sic)g whether the cause of action in the previous it and the present one was the same or not the next urged that in paragraph 2 of the earlier (sic)aint the appellant had clearly reserved his (sic)ght to file a separate suit for recovery of the (sic)incipal amount and the respondents did not specifically deny this fact which amounts in law a separate agreement giving a fresh cause of (sic)tion to the appellant. He next contended that (sic) right to recover interest and the right to cover the principal amount are two different uses of action and the learned Subordinate Judge failed to appreciate the legal position.

Sri Sadasiva Rao the learned Counsel for the respondents contended that the Court be(sic) had rightly held that the suit was barred (sic)ier O. 2, R. 2, C. P. C. Adverting to the argument of the plaintiff in relation to his reservation of right to file the suit for principal amount, is contended that mere mention that the plaintiff had reserved his right is not sufficient, (sic)ess the plaintiff-appellant brought that fact the notice of the Court and the Court grant(sic) (sic)permission. It is also urged that it is not cor(sic) to say that the claim for the recovery of (sic)rest and the principal amount are based on different causes of action and the Court (sic)w has rightly held that it relates only to one (sic)le transaction.

The sole point, to be considered is, whe(sic) the Court below is right in holding that the (sic)ent suit of the plaintiff is barred under O. 2, (sic), C. P. C. In order to appreciate the arguments of the learned Counsel, a reference first the terms of the mortgage deed is necessary. (sic) first relevant stipulation in the mortgage (sic) runs thus:

The mortgagors agree and undertake to re(sic) the said sum of H. S. Rs. 11,000/- to the mortgagee within five years from this date to (sic)er with interest at six annas (0-6-0) per cent month compoundable every year. The mortgagers agree to pay the interest due regularly (sic) month.

(sic) second relevant term in the mortgage deed the following effect:

The mortgagors further agree, notwithstanding the stipulation for payment of com(sic)d interest and for repayment within five (sic)s, that if they should allow any six months'' (sic)est to fall into arrears, then the mortgagee entirely at his option be entitled either to (sic)er only the arrears of interest or the whole (sic) amount that becomes due under this docu(sic) immediately.

There are therefore two distinct and terms of agreement between the parties first is that the entire mortgage amount interest would be paid within five years the date of the execution of the document. (sic) next stipulation between the parties is that notwithstanding the said stipulation of payment of the principal amount within five years, if the mortgagors fail to pay any six months'' interest, the mortgagee would be entitled either to recover only the arrears of interest or the whole of the amount. What is contended on behalf of the appellant is that the subsequent stipulation in the mortgage deed gave him an option to recover either the interest or the principal amount even after the expiry of five years.

In other words, it is contended that in case of default the document has to be read as though there was no period fixed therein when he should claim both the principal and interest. We are very reluctant to accept this contention of the learned counsel. Under the first mentioned term of the document, the mortgagee could not recover the mortgage amount within the specified period of five years. By the subsequent stipulation, the mortgagee was given a right to recover at his option the principal amount also within the specified period of five years provided the mortgagors made a default in payment of the interest amount.

The option given cannot be stretched further than the stipulation would warrant and there is nothing in the stipulation which permits the plaintiff to split up his claim or relief even after the expiry of five years when under the clear terms of the contract the plaintiff is entitled to recover both the principal and interest. If that was the intention there should have been clear words to convey the same. To accept the contention of the appellant''s counsel would amount to reading something which is not in the document. Evidently, the plaintiff did not exercise his option within five years.

He waited till the expiry of five years. The previous suit which was filed by the appellant for recovery of the interest amount was instituted after the expiry of the stipulated period of five years. The question, therefore, is whether the mortgagee could file a suit for the interest alone or he ought to have filed a suit for recovery of the principal amount also. Admittedly after the expiry of five years, the mortgagee became entitled to the recovery of the entire amount.

Order 2, R. 2, C. P. C., which provides that the suit shall include the whole of the claim reads thus:

(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 the plaintiff may relinquish any portion of this claim in order to bring the suit within the jurisdiction of any Court.

(2) 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) 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.

This rule is based on the principle that the defendant should not be vexed twice for one and the same cause of action. It is directed against two evils, the splitting of claims and the splitting of remedies. It provides that if the plaintiff omits any portion of the claim which he is entitled to make or any of the remedies which he is entitled to claim in respect of the cause of action for his suit, he shall not thereafter sue for the said portion of the claim or for the remedy so omitted. Identity of cause of action is, however, the criterion. It follows from this that this rule would not preclude a second suit based on a distinct and separate cause of action.

Now we have to see whether the causes of action in the present suit and in the previous suit are one and the same. The cause of action in the previous suit was the default of payment of interest by the mortgagors and by that time there was also a default of payment of principal amount under the terms of the contract.

The cause of action in the present suit is also the same i.e., default in the payment of the principal and the interest amount. Further the relief claimed in both the suits is the same i.e., the sale of the mortgage property. We therefore do not agree with the contention of the learned counsel for the appellant that the cause of action for the recovery of the interest and the cause of action for the recovery of the principal amount are different.

Inasmuch as at the time of the filing of the previous suit the principal amount had already become due it was obligatory on the appellant to have included the claim for the principal amount also along with the claim for interest. As the appellant had not included this amount in the previous suit the present suit for the recovery of the principal amount would be barred by O. 2, R. 2. We are supported in this view by the case of AIR 1922 23 (Privy Council) This was also a case of mortgage. In this case the mortgagee had filed a suit for interest first and by a subsequent suit he claimed the principal amount. It was held that O. 2, R. 2 was a bar to such a suit. The cases relied upon by the appellant are not at all helpful to him.

The first case relied upon is the case of Badi Bibi Sahibal and Co. v. Sami Pillai, ILR 18 Mad 257 (B). In this case the only point for determination was whether the plaintiff expressly waived his right to claim the principal and interest at the date of the former suit. The learned counsel for the appellant relied on this authority to show that as under the terms of the mortgage bond he was given an option either to sue for interest or for the principal amount and as he in the previous suit clearly stated that he reserved his right for filing a separate suit for the principal amount that was sufficient to protect the subsequent suit from the bar of Order 2, Rule 2. This case does not help him as the suit was instituted before the expiry of the period of three years, stipulated for payment of principal amount. It is not so in the present case.

The next case of Kesho Rao Ganesh v. Suklya Mali. AIR 1924 Nag 61 (C) was a case for the recovery of the instalments amount under a bond. There was a stipulation in the bond that if the creditor had by default in payment of any one of the instalments, acquire the right to recover the whole amount, he might have still had his option for recovery of the three instalments. The plaintiff filed a suit f(sic) four instalments which had fallen due an obtained a decree. Subsequently when the plaintiff filed a suit for the remaining instalment the defendant pleaded that it was barred under Order 2, Rule 2. It was held that the suit for the recovery of the last three instalments w(sic) not barred as the cause of action for the s(sic) arose subsequent to the filing of the previous suit.

This ruling also, in our opinion, does not help the contention of the learned counsel. The last case relied upon is Rangaswami Goundan Rangai Goundar, 67 Mad LW 1081: ( (S) A 1955 Mad 545) (D). In this case their Lordship of the Supreme Court held that if a party ta(sic) a defence like an objection under Order 2, Rule 2, it is essential that he should place before court the best evidence to support such a p(sic) and that it is also essential for the court to k(sic) what exactly was the cause of action (sic) was alleged in the previous action in order t(sic) it might be in a position to appreciate whet the cause 6f action alleged in the second suit identical with the one that was the subject (sic)ter of the previous action. As discussed ab(sic) the question in the present suit only turned on the interpretation of the terms of the d(sic)ment and there was no controversy about f(sic)therefore it was not necessary for the court have sent for the record.

There is no force in the argument since the appellant had reserved his right file a suit for the recovery of the principle amount in his earlier suit, the question of bar under Order 2, Rule 2 does not arise doubt, in paragraph 2 of the plaint, the appellant had stated that he reserves his right to a suit for the principal amount and the defendants (respondents) in paragraph l of their (sic)ten statement clearly did not deny this; the mere mention in the plaint end the abs(sic) of its denial by the respondents would not the plaintiff (appellant) unless it is shown the court permitted the plaintiff to file (sic)parate suit. There is nothing on record to that the matter was brought to the notice (sic) Court. There is no specific order of the also to that effect.

There is no force in the other conte(sic) of the appellant also that a bare mention the plaintiff of the reservation of his right (sic) a separate suit and the respondents'' fail(sic)deny the same in that suit give the app(sic) a fresh cause of action creating a separate tract. At least, the plaintiff-appellant had framed his suit in that matter. As admit there is no leave of the court permitting the appellant to file a separate suit and it was (sic)gatory on the plaintiff to have include claim for the principal amount in the pr lit, the present suit, in our opinion, becomes (sic)arred under O. 2, R. 2.

At this stage, learned counsel for the appellant made a request to us that as this court is of the view that the present suit of the appellant is barred under Order 2, Rule 2, C. P. C., the wishes to file a petition for amendment (sic)ving up his right to enforce his claim against (sic)e property and confine his relief only to a personal decree against the respondents. Sri (sic)dasiva Rao, learned Counsel for the other (sic)e, objected and argued that at this stage the appellant was not entitled to move the court for amendment. We, however, directed the learned counsel to put in a petition. The learned Counsel for the appellant has now filed a petition requesting that he may be allowed to make amendment giving up his claim against the property.

We heard the arguments of the advocates this petition. The learned Counsel for the appellant placed his reliance on the cases of AIR 1921 50 (Privy Council) M. Chettiyar Firm v. Ma Shwe Pon, AIR 1927 (sic)g 154 (F); AIR 1941 289 (Nagpur) and L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., and S. 68 of the Transfer of Property Act and contended that (sic)er the said provision he could give up his (sic)t to enforce his claim against the property claim only a personal decree against the mortgagor which is a different cause of action (sic)self. He next contended that even at the (sic)llate stage amendment ought not to be re(sic) when it does not change the nature of the and no new case is introduced which is in(sic)stent with the original claim.

On behalf of the other side, it is contended the appellant is not entitled to say at this that he is giving up his right to enforce (sic)aim against the property and confine him(sic) only to a personal decree. It is argued that not correct that the claim for the personal (sic)e is a separate and distinct cause of ac(sic) from the relief already claimed. He urges the cause of action in both the suits is the though the relief claimed is different and on account of the relief being different not be said that new cause of action arises (sic) appellant. Reliance was placed on the of Harichand v. Mela Ram, AIR 1932 Lah (sic)) and Kalisetti Subbarayudu and Others Vs. Pagadala Balaramayya,

We have given careful consideration arguments of the learned counsel. We (sic)try reluctant to accept the contention of learned counsel for the appellant. As dis(sic)earlier, the cause of action in both these (sic) the default in the payment of the inte(sic)nd the principal amount and when the ori(sic) suit was filed after the expiry of the fixed, it was obligatory on the appellant included the whole claim. Failure to do (sic)Id entail the consequence of O. 2, R. 2. (sic)estion of giving up the claim against property is only a question of relief.

The appellant under the terms of the mortgage bond was entitled to two reliefs, one against the property and the other against person. Order 2, R. 2 does not permit splitting of either the cause of action or relief.

When as a result of the previous suit the relief to enforce the security is barred and becomes lost to the appellant, the appellant has no security available to him, which he could abandon so as to get the benefit of S. 68, Cl. (2) of the Transfer of Property Act. In this view of the matter, the question of allowing the amendment does not arise. We need not, therefore, go into a detailed discussion of the authorities cited by the learned counsel relating to the amendment. We therefore reject this petition.

In the result, this appeal would stand dismissed with costs.