Md. Golam Anowar vs Kumud Ranjan Nath

B.L. Hansaria, J.—The Plaintiff who had instituted this suit on 10.8.67 for realisation of sum of Rs. 2,250.00 as arrear house rent has ultimately lost because his suit has been held not maintainable being hit by the provision of Order 2, Rule 2 Code of Civil Procedure. The dismissal, however, took place in the fourth round of the legal battle. Once before also the Plaintiff had lost at the hand of the learned trial Court, but on appeal being preferred, the suit was decreed. On the Defendant approaching this Court in S.A. 123/73, this Court after setting aside the impugned judgment remanded the case to see if provision of Order 2, Rule 2 stood in the way of the Plaintiff because of an earlier suit by him. By the impugned judgment this question has been answered in favour of the Defendant.

In view of the above history of the litigation, it is not necessary to examine other aspects relating to the suit. It would be enough if the question relating to Order 3, Rule 2 is gone into on which aspect alone I have been addressed by the learned Counsel of the parties. The bar of the provision has been urged because in Title Suit No. 225 of 1967 (a litigation between these very parties relating to the self-same property), the Plaintiff had only prayed for eviction of the Defendant from the premises. It is submitted that as the Plaintiff could have prayed for recovery of the rent in that suit itself which was instituted on 9.6.67, his omission to do so debars him from approaching the Court by filing another suit to claim the same relief.

The principles behind the provisions of Order 3, Rule 2 are salutary. They are meant to avoid multiplicity of proceedings and prohibit splitting up of claims. They do not want a person to be vexed twice for the same cause of action. Rule 2 therefore, demands that a suit or approaching the Court must include the whole claim in respect of the cause of action which impelled him to approach the Court. It is thus clear that the cause of action of the two suits must be the same before Rule 2 could be used to slam the doors of the Court against the Plaintiff. The expression "cause of action" means in this context the cause which gave occassion for and formed the foundation of the suit, and if that cause enabled the Plaintiff to ask for a larger and wider relief than that to which he limited his claim, he cannot afterwards seek to recover the balance by independent proceeding, as stated in Sidramappa v. Rajashetty AIR 1970 S.C. 1959 . Further, while deciding this matter, the term "cause of action" is to be construed with reference to the substance rather than to the form of action. The test to be applied would be "is the cause of action of the two suits in substance and not technically identical". (See Suraj Ratan Thirani and Others Vs. The Azamabad Tea Co. and Others, Though this view has been expressed while elucidating the scope of the disabling provision in Order 9, Rule 9 that a Plaintiff is precluded from bringing a fresh suit in respect of the same cause of action where his suit is wholly or partly dismissed under Order 8, there can be no doubt that what is stated about the expression "cause of action" while examining the scope of Order 9, Rule 9, would apply while discussing the ambit of Order 3 Rule 2.

To decide whether cause of action is the same or not, it is apparent that copy of the plaint in the earlier suit must be before the Court, as stated in Harishchandra v. Kailash Chandra AIR 1975 Raj 14, as without it, this controversy cannot be resolved. Though the copy of the plaint in Title suit No. 225/57 was not produced by the Defendant before the Court trying the present suit. I have not deemed it appropriate to hold against the Defendant solely on this ground, as Shri Laskar for the Plaintiff/Appellant fairly brought to my notice that the same is available along with the records of S.A. 17/71 of this Court which arose out of the eviction suit. I have perused the plaint of the earlier suit so available.

In a general way it can be said that in the case of a suit for recovery of arrear of rent, the cause of action arises when the rent fall due and is not paid, whereas in the case of a suit for eviction the cause of action arises, if the matter is governed by the Transfer of Property Act on the failure of the tenant to hand-over possession on the happening of any of the events mentioned in Section 111 of the Act. If it be a case where the tenancy is determined by giving a notice visualised by Clause (h) of Section 111, the cause of action for recovery of possession would be the "obligation to withdraw from the occupation" whereas the foundation of the rent suit is the "obligation to pay for the occupation", as picturesquely differentiated in Subbaraya v. Rathanavtlu 2 Ind Cas 313 (Madras) which was cited with approval in Khusiram v. Abdul Gafur AIR 1982 Lah 118 . It is because of this that causes of action of these two types of suit were regarded as different and distinct. Same view was taken in Dau Dayal Vs. Brij Mohan and Another, by observing that ejectment suit is based on revocation or determination of tenancy whereas rent suit is founded on the agreement to pay rent which could be enforced independently of the termination of the tenancy. Bombay High Court also took the same stand in Bai Dahi Vs. Ghanashyam Haridas, It was pointed out that cause of action for recovery of arrears of rent arises when the rent falls due and is not paid, whereas in the case of suit for possession under the enactment governing the parties, the cause arose on the expiration of one month from the demand of possession.

The legal position seems indubitable so far. Question is what would happen if, say, default in payment of rent itself furnishes a ground for seeking possession, which would be so where the lease contains a clause that default will entail forfeiture of the tenancy following which the lessor could re-enter? Such was the case in Kashinath v. Nathoo AIR 1914 Bom 130 . There the lease provided that if the lesser failed to pay rent for any year, the lessor could recover possession. On failure to pay rent for 2 years suit for ejectment under the forfeiture clause was filed and possesion was obtained. Subsequently, the Plaintiff sought to recover rent for the two years in question. The suit was held as barred. The position in Ganeshi Lal Vs. Bansi Dhar and Others, was converse. Therein also there was agreement that in case of default in payment for three years, the lesser could evict the lessee. The rent not having been paid, a suit for realising the same was filed, but possession was not asked. Subsequent suit for ejectment was held barred as the cause of action for possession had accrued when the rent suit was filed. (See Neelkanta v. Eurica Maria AIR 1955 T.C. 170 also). Similar may be the position in the cases governed by Rent Control statutes where default in payment may itself provide the ground for seeking eviction.

So, no general formulation is possible. Every case shall have to be examined on its own facts. Before the facts of two concerned Suits are noted, it may be useful to note curtain other provisions of Order 2 to clearly understand the scope or Rule 2. Rule 7 of this Order requires objection to misjoinder of causes of action to be taken at the earliest possible opportunity and in all cases before settlement of issues; and any such objection not taken is deemed to have been waived unless the grounds of objection have subsequently arisen. The more important provision to note for the puspoee at hand is contained in Rule 4 which permits claims mentioned only in Clauses (a), (b) and (c) to be joined (without leave of the Court) with a suit for recovery of immovable property. This claim includes arrear of rent. The provision of Rule 4 would indicate that but for it the claim for arrear of rent etc. could not have perhaps been joined in a suit for recovery of immovable property. This is the view expressed in Shankarlal Laxminarayan Rathi and Others Vs. Gangabisen Maniklal Sikchi and Another, a Full Bench decision. The opening words of Rule 4. contain this interdiction as per this judgment, which is important for our purpose for another reason as it has held that a subsequent suit for possession based on title is not barred under Rule 2, even if in the first suit, the lesser could have asked for possession alongwith the defaulted amount on the basis of contract of lease. Of course, the view could be taken because in the first suit it was held that the Defendant had ceased to be a tenant.

Let it is now be seem as to what was the real cause of action in Title Suit No. 225/67. The plaint of that suit, while narrating that the Defendant was in arrear for the period involved in the present suit and had failed to handover possession despite issuance of termination notice states that what had led to the filing of suit was the denial of Plaintiff''s title in the premises by the Defendant. It has been stated in para 6 of that plaint that the Defendant has become liable to be evicted as he lad declared his title to a portion of the schedule and to the house denying Plaintiff''s title thereto, It has further stated that the members of the Plaintiff''s family are in need of residence at Karimganj for living in that town. Though mention has been made in this para about the Defendant having become a defaulter also, the cause of action for the suit was stated to have arisen since first of Sravan 1374 B.S., the date on which the period of notice asking the Defendant to give up possession had expired. A look at the present plaint shows that the cause of action for the same had arisen on the last of month of Sravan 1971 B.S. to the last day of the month of Asar 1374 B.S. for which period the arrear of rent was claimed.

The above would show that the causes of action in the two suits were not same even substantially not to speak of technically. First, the, title suit was filed because of denial of Plaintiff''s title. Secondly, possession was claimed in that litigation due to bona fide requirement. Thirdly, even though tenancy was terminted due to default, the cause of action for possession was the non-vacation following notice of determination. These causes of action are different from those on which the claims for arrear rent is founded. Thus the Plaintiff could have asked for arrear rent in his suit for ejectment by virtue of the enabling provision in Order 2 Rule 4(a), it is not a case where he must have done so as the causes of action being different, he was under no statutory obligation to combine the two reliefs in one proceeding. It may be pointed out in this connection that although claims in the two actions may arise out of the same transaction, that would not mean that causes of action are same vide Poyana Reena v. Pona Lana 41 I.A. 142 (P.C.). So, the disabling provision of Order 2 cannot be invoked against the Plaintiff.

This being the position. I am not satisfied if the present suit was hit by Order 2 Rule 2. The Plaintiff''s case having been established on other points the same has to be decreed and is hereby decreed. The appeal is thus allowed with cost by setting aside the impugned judgment and by decreeing the suit for a sum of Rs. 2,250/- with costs. This sum will carry interest @ 12% from today till realisation of the amount.