Ram Lakshman Janki Ji and Others vs Makund Lal Sahu and Others

Reuben, J.—This appeal had been filed by the plaintiffs against a decision of the Subordinate Judge of Bhagalpur, dismissing their suit on a preliminary ground.

The suit is one for a declaration of title to and for recovery of possession of certain property in Bhagalpur Town by dispossessing therefrom defendants 1 to 3, defendants first party. The suit has been dismissed as being non-maintainable by reason of a previous suit brought by the plaintiffs as lessors to eject the defendants first party from this very property, On the allegation that they were tenants and the tenancy had been terminated by the expiry of notice to quit.

The relationship of the parties will appear from the following skeleton genealogy:

klADHO LAL SAHU | ____________________________________________________ | | | Gkdhari Lal Sahu Behari Lal Sahu Parsan Lal Sahu | | | | Dwairka Lal Sahu, Jago Lal Saha | Sebait of Plaintiff Plaintiff 2 ________________________________________________________________________ | | | | Banwari Lal Sahu Mt. Sita Sahu Mt. Sahodra Mt. Jaaoda Sahu (Married Jasoda Sahu) | Sahu | | | | | Hira Lal Sahu Sunder Lal Sahu, | Gondo Lal Sahu, Defendant 5 | Defendant 4 ___________________________________ | | | Makundi Lal Sahu, Anti Lal Sahu, Santi Lal Sahu, Defendant 1 Defendant 2 Defendants.

According to the plaintiffs the houses in suit belonged to Giridhari Lal Sahu, who was separate from his brothers; on his death they passed to his son Banwari Lal, and on Banwari''s death to Hari Lal; from Hari Lal, the property passed to his mother Jasoda, and finally on Jasoda''s death to Dwarika Lal and Jago Lal plaintiff 2, as next reversioners.

In the former suit, Title Suit No. 10 of 1939, they sought for the ejectment of the defendants first party on the allegation that they had entered into possession of the property on a lease granted to them by Dwarika Lal. Plaintiff 1 was an idol in whose favour Dwarika Lal executed an arpannama on 27th April 1937, in respect of his eight anna share on 9th May 1938. Defendants 4 and 5, defendants second party, were impleaded because in the reply given by the defendants first party to the notice to quit, they claimed the title to the property to be vested in themselves along with defendants second party. According to their reply, Banwari Lal died leaving no issue and was succeeded by his widow Jasoda, and after her death the defendants'' first and second parties succeeded as sister''s sons of Banwari Lal and are in possession.

In the plaint in Title Suit No. 10 of 1939 the plaintiffs set out their title as described above in addition to the facts necessary for a suit for the ejectment of an ex-tenant. The relevant reliefs prayed for were: (1) That the plaintiffs be adjudged to be proprietors of the property in suit and the defendants first party to be tenants in respect of it: (2) That it be adjudged that defendants have no right to retain possession since the expiry of the notice to quit, (3) On adjudication of the above points, plaintiffs be put in direct possession. Alternatively, if the Court finds the relationship of lessor and lessee not to be established, plaintiffs be given a decree for the recovery of possession on the adjudication of their title.

As framed the plaint was an ordinary title suit, but the court-fee paid on it was that payable u/s 7(xi)(cc), Court-fees Act, on a suit to eject an ex-tenant. The suit was subsequently converted into a suit of this kind by the omission from the first relief, of the prayer for the adjudication of the plaintiffs'' title and, from the third relief, of the alternative prayer. At the same time that these amendments were made, defendants second party were properly expunged "from the record.

The parties went to trial on issues relevant to a suit of this kind. Parties were allowed, however, to adduce evidence on the question of title. The suit was finally dismissed on 30th September 1939; the Munsif holding that the alleged lease had not been made out--a finding sufficient by itself to dispose of the suit. The Munsif went on to consider the question of title, which he decided in favour of the plaintiffs, but he rejected the contention that, following Mohamad Yusuf and Others Vs. Mohamad Waheed, , the plaintiffs should get a decree for ejectment on the basis of their title.

After this the plaintiffs brought the pre. sent suit on substantially the same pleading, asking for a declaration of their title to the land and for the recovery of possession. There are two more plaintiffs, persons to whom portions of the eight anna interest claimed by plaintiff 2 are said to have been transferred since the institution of Title Suit No. 10 of 1939.

The first Additional Subordinate Judge, Bhagalpur, has held this suit to be barred under the provisions of Order 2, Rule 2 and Order 28, Rule 1, Civil P.C. Hence, the present appeal. Order 2, Rule 2, is as follows:

(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 a plaintiff may relinquish any portion of his 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.

Explanation. -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 but one cause of action.

It is identical in terms with Rule 34, Ceylon Procedure Code, which was interpreted by their Lordships of the Judicial Committee as follows in Payana Reena Saminathan v. Pana Lana Palaniappa 41 I.A. 142 :

Their Lordships are of opinion that the learned Judge took an erroneous view of the object and meaning of this section. It is directed to securing the exhaustion of the relief in respect of a 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 transactions. The first part of the clause makes It incumbent on the plaintiff to include the whole of his claim in his action. The second portion makes it incumbent on him to ask for the whole of his remedies. The final paragraph, in their Lordships'' opinon, is not intended to be an illustration of the foregoing provisions but a substantive enactment, making an obligation and a collateral security for its performance (which would otherwise be two independent causes of action) one cause of action for the purposes of the section.

On this view of the section their Lordships held that a party, who sued unsuccessfully on a hand-note which had become unenforceable owing to an innocent act, could sue to recover the unpaid balance of the debt, for the satisfaction of which the hand-note has been executed.

The test to decide whether Order 2, Rule 2 is a bar to the later suit is whether the cause of action is different. This was the test adopted in Rajah of Pittapur v. Suriya Ram 12 I. A. 116 Applying this test to the present case there is no doubt that Order 2 Rule 2 is not obstacle, for the cause of action in the earlier suit was based on the alleged lease and arose ex contractu whereas the present suit is based on the plaintiffs'' title and seeks to eject the defendants trespassers. This conclusion follows, in my opinion, from the provision made in the Court-fees Act for a special court-fee for a suit to eject an ex-tenant, and in Section 116, Evidence Act to simplify the issues in such a suit. Under the latter section, the main issue in the suit is whether there was a lease as alleged by the plaintiff. If there was not, the suit must fail. If there was, the defendant cannot challenge the title of the plaintiff and the plaintiff is entitled to a decree, provided he succeeds in establishing that the tenancy has terminated. Such a suit being similar [sic] than a suit for ejectment on a finding of title, the Court-fees Act provides for a lower court-fee. If this provision is to be effective, the plaintiff must be assured that in the event of-his failing in such a suit, it will be open to him to sue for the same remedy on a finding of his title. Unless this is so, dishonest tenants may compel him to sue on his title by frivolously raising questions of title.

A Division Bench of the Madras High Court dealt with a case somewhat similar to the present case in Mangalathammal v. Veeraappa Goundan A.I.R.1919 Mad. 743. Applying the test mentioned above, they held that the subsequent suit was not barred. Mr. P.R. Das has tried to distinguish that'' case on the ground that the pleadings in the two suits were mutually destructive and so could not have been combined in a single suit, seeking relief on the termination of the lease and alternatively on title. The contention is based on the remarks made by Sadasiva Aiyar J. in dealing with an argument based on Section 42 of the old Code of Civil Procedure, corresponding to Order 2 Rule 1 of the present Code of Civil Procedure, requiring the suit to be framed "so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them." It was in this connection that he said that it should be considered whether it was practicable to have framed the first suit by alleging the facts put forward in the second suit, without the evidence respectively on the two seta of facts being mutually destructive. He did not find it necessary to apply this test to the case, before him however.

because in the present case the title put forward in the first suit (based on the contractual relationship of landlord and tenant) and the title put forward in the-present suit (the title as one of the three heirs of the last male owner) constitute different causes of action." Par from the two sets of facts being inconsistent* it would appear that they were consistent with each other, for Spencer,, J. notes that there would have been no objection under Order 2, Rule to the joinder of causes of action in the two suits.

Parambath Manakkal v. Puthengathil Moosamu 28 Mad. 406, was a similar case in which it was held that a suit to redeem a kanam (mortgage), dismissed on the ground that the demise was invalid, will not bar a subsequent suit for the declaration of title to recovery of possession. In the opinion of their Lordships, the cause of action based on contract in the earlier suit was quite distinct from the cause of action based on title in the later suit.

Muhammad Hafiz v. Mirza Muhammad Zakriya A.I.R.1922 P.C. 23 and Kishan Narain v. Palamal AIR 1922 P.C. 412, cited by Mr. P.R. Das, are distinguishable on the facts from the case before us. They were both cases in which a simple mortgage bond provided for periodical payment of interest, subject to the condition that if the interest remained unpaid for a certain period, the mortgagee would be entitled to sue either, for the arrears of interest due ''or for the whole amount due under the bond. In both eases there was default in the payment of interest entitling the mortgagee to proceed under this clause, and he elected, after the date for the payment of the bond itself had expired, to sue only for the arrears of interest due. When subsequently he attempted to sue to enforce the bond, it was held that Order 2, Rule 2, Civil P.C. operated to bar the suit. As explained by their Lordships of the Judicial Committee in the later case, the decision proceeded on the explanation to Order 2, Rule 2, under which a personal claim for the mortgage money under the mortgage and the enforcement of the security for the debt are to be regarded as one and the same cause of action. They pointed out that, if the mortgage had provided as mortgages in England always do, for an independent obligation to pay the principal and interest, a suit brought to obtain personal judgment in respect of interest alone would not, by reason of this rule, have operated to prevent a subsequent claim for the payment of the principal, because "in such a case the cause of action would have been distinct."

This brings me to the Order 23, Rule 1, the relevant provisions of which are:

(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon a part of his claim...

(3) Where the plaintiff withdraws from a suit or abandons part of a claim, without the permission referred to in Sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.

It is pointed out that a claim on the basis of title was put forward in the plaint of title suit 10 of 1939, as originally framed, and was with drawn by the amendments above mentioned, without the permission of the Court. The answer, to my mind, is that the claim in question never came before the Court, because the requisite] court-fee was never paid. Once the court-fee is paid and other defects in the plaint are removed, it can only be dismissed or withdrawn or disposed of in the other ways provided by the Code. But, if the court-fee is not paid, it is liable to be rejected, and the rejection does not bar the bringing of a fresh suit on the same cause of action (Order 7, Rule 11 and 13, Civil P.C.).

In this view of the matter, it is not necessary to deal with Mr. P.R. Das''s contention based on certain pleadings in the plaint of Title Suit 10 of 1939. He points out that according to> that plaint the lease under which defendants 1st party held was granted by Dwarika Lai alone. He argues from this that plaintiffs 2 and 3 must have been suing on their title, and cannot sue again on title. I cannot agree that, even after the amendment of the plaint in Title suit 10 of 1939, plaintiffs 2 and 3 must be taken to have been suing on title. The notice to quit was given on behalf of all the plaintiffs. So it may be that the plaintiffs treated the defendants as holding, under all the plaintiffs, either because DwarikaLal acted on behalf of all the proprietors, or because the other proprietors subsequently approved'' of his action and accepted the defendants as their tenants. Another way in which it is possible to regard this matter is plaintiff l, the successor-in-interest of Dwarika Lai, was the principal plaintiff, entitled to get a decree on proof of the lease, and the other two plaintiffs were joined to show that they approved of his action, and to safe-guard their position as co-proprietors with plain, tiff 1. What exactly the facts were do not appear because this is the first time that this point has been raised and the facts have not been investigated.

On the above grounds, I would allow this appeal, set aside the decree of the Subordinate Judge and remand the suit for disposal according to law. Our decision must not be understood as meaning that the reliefs sought in this suit are allowable in their entirety. Obviously at least one of them, namely, the prayer for arrears of rent, is barred by reason of the previous suit. For the purposes of this appeal, it was not necessary for us to consider in detail each of the reliefs asked for, and they will have to be considered by the Court which tries the suit. The costs of the appeal will be costs in the. case.

Shearer J.

I agree.