Lachmi Narayan Lal and Another vs Bhupendra Prasad Shukul and Others

Rowland, J.—This is a reference by the Taxing Officer for determination of the court-fee payable on the appeal of the defendants in a suit for rent. The suit was instituted by two plaintiffs who were cosharer landlords to the extent of 8 annas. They framed their suit u/s 148A and asserted that the 8 annas rent of the years in suit was due to them and so far as their information went, that was the wholo of the arrear of rent due. They impleaded as pro forma defendant the cosharer of the other 8 annas. They paid court-fee on the amount of rent alleged to be due to plaintiffs 1 and 2. Later, the pro forma defendant applied to be transposed and to become a plaintiff alleging that not only the plaintiff''s share of rent but his own share of rent also was unpaid and praying that a decree be passed in his favour for the rent due to him. The prayer was allowed on his paying court-fee on the amount claimed by him. The suit was decreed in favour both of the original and of the added plaintiffs. The Stamp Reporter proposes to realize from the defendant-appellants court-fee equal to the total of the court-foes paid by the plaintiffs in the lower Court. The defendants contend that the claim for rent of the years in suit is one claim, one subject based on one cause of action and that u/s 17, Court-fees Act the fee payable is a lump sum based on the total of the reliefs nought and decreed.

A somewhat similar case where a pro forma defendant had been transposed as plaintiff came before me in second Appeal No. 252 of 1942 Ramadhin Singh v. Baijnath Prasad Singh AIR 1943 Pat. 355 and I held in my order dated 16th November 1942 that courtfee was payable separately, one court-fee on the claim of all the original plaintiffs and a second court-fee in respect of the claim of the added plaintiff. In the course of that order I observed that separate claims to relief are ordinarily separate and distinct subjects. At the hearing of the present reference, I have been referred to Nauratan Lal v. Wilford Joseph Stephenson AIR 1922 Pat. 359 and asked to consider whether the above observation can be supported. I must say that I appear to have expressed myself too broadly and would wish that observation of mine to be read as going no further than to say that separata claims to relief perferred by different claimants are generally separate and distinct subjects. The decision just referred to has accepted as settled law that in Section 17 the word ''subject'' means ''cause of action,'' and on that basis it has been argued that the cause of action for the whole claim of rent due to both sets of plaintiffs was one and therefore the court-fee ought to have been a single lump fee. What ''cause of action'' means is not at all explored in Nauratan Lal v. Wilford Joseph Stephenson AIR 1922 Pat. 359 but has been considered in E.I. Ry. Co. v. Ahmadi Khan AIR 1924 Pat. 596 in this Court with reference to Section 17 and in two decisions of the Privy Council, that is to say Chand Kour v. Partab Singh (89) 16 Cal. 98 with, reference to Order 2 Rule 2 and AIR 1932 216 (Privy Council) with reference to Order 2 Rule 4 Taking ''cause of action'' to mean the whole of the facts on which taken together the right to relief is based. I think it is clear that there may be a series of events or facts of which some only are necessary as a foundation for a particular claim, whereas the same facts with others subsequently arising or disclosed may form the foundation of another and further claim. Now the second claim will not be held to be barred under Order 2 Rule 2 by reason of the presentation of the former claim; that was the effect of the decision in Chand Kour v. Partab Singh (89) 16 Cal. 98. Their Lordships observed:

It is impossible to say that a cause of action which did not exist at the time when the earlier suit was dismissed can be regarded as other than a new cause of action subsequently arising.

If however the former claim was withheld when the whole cause of action for the second claim had arisen and was sued on, then the causes of action would be deemed to be identical so as to bar the earlier claim from being separately sued on at a later date. In this case one essential fact, on which the claim of the added plaintiff to relief was based, was the fact of non-payment to him by the tenant, defendants of his share of the rent of the years in suit. This was a fact not disclosed in the plaint of the original plaintiffs. Indeed the plaint disclosed that to the best of the knowledge of these plaintiffs there were no dues outstanding to any co-sharer. It seems to me perfectly clear then that the claim of the added plaintiff was not a claim on the same cause of action and was not within the same subject as the claim first put forward.

In the Court below separate court-fee was correctly realized from the original plaintiffs in respect of their claim and from the added plaintiff in respect of his own claim. The court-fee on the memorandum of appeal must be the same as the court-fee on the plaint and in this case the defendants must pay the court-fee called for by the Stamp Reporter. Six weeks'' time is allowed to pay the deficit court-fee failing which the memorandum of appeal will be rejected without further reference to the Bench.