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Kashinath Ramchandra Vs. Nathoo Keshav - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Case NumberSecond Appeal No. 566 of 1913
Judge
Reported inAIR1914Bom180; (1914)16BOMLR454
AppellantKashinath Ramchandra
RespondentNathoo Keshav
Excerpt:
.....support his right to the judgment of the court. if the evidence required to support two claims is different in any material respect the causes of action are different.;the words of rule 4 do not imply that in all cases a suit for the recovery of immovable property must necessarily be based upon a different cause of action to a suit for arrears of rent for the same land. there may be cases in which a suit for recovery of land will involve the production of different evidence to that necessary to support a suit for rent in respect of the same land. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between..........court ' : read v. brown. (1888) 22 q.b.d. 128. if the evidence required to support two claims is different in any material respect the causes of action are different: see brunsden v. humphrey (1884) 22 q.b.d. 128. the rule of the supreme court in england (adopted in order 11, of the civil procedure code) which prohibits with certain exceptions the union in one suit of other claims with a claim for the recovery of immoveable property is, as pointed out by sir george jessel in gledhill v. hunter (1880) 14 ch.d. 492 a survival from the rule prevailing in ejectment actions modified by a limited application of the rule in chancery that you might join in a suit to establish title to land any other cause of action so long as you did not make your bill open to objection on the ground of.....
Judgment:

Basil Scott, Kt., C.J.

1. The material facts are stated by the appellate Judge as follows:- ' The lease provided that on the defendants' failure to pay the rent the plaintiff should be entitled to take possession of the lands. Defendants having failed to pay the rent of the two years in question the plaintiff sued them in 1909 for possession and obtained a decree which directed that on the defendants' default to pay all the arrears of rent and costs within three months the plaintiff should take possession of the lands and recover his costs from them. See Exhibit 19, It is admitted that the defendants did not pay the rent and costs and that consequently the plaintiff took possession of the lands. In the said suit the plaintiff asked for permission to bring a separate suit for the rent of the two years in question, but none was given to him. The question therefore is whether the present suit is barred under Civil Procedure Code, Order ii, Rule 2. I think it is clearly barred.'

2. In our opinion the decision of the lower Court is correct. The claim in the present suit for rent up to the date of the forfeiture arises upon the same contract of tenancy as did the landlord's right of forfeiture for non-payment of rent.

3. The 'cause of action' upon which the plaintiff may base various claims in one suit under Order ii, Rule 2, does not depend upon the character of the relief for which he prays. 'It refers to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour' (Mussummat Chand Kour v. Par-tab Singh ' to every fact which it would be necessary for the plaintiff to prove in order to support his right to the judgment of the Court ' : Read v. Brown. (1888) 22 Q.B.D. 128. If the evidence required to support two claims is different in any material respect the causes of action are different: see Brunsden V. Humphrey (1884) 22 Q.B.D. 128. The rule of the Supreme Court in England (adopted in Order 11, of the Civil Procedure Code) which prohibits with certain exceptions the union in one suit of other claims with a claim for the recovery of immoveable property is, as pointed out by Sir George Jessel in Gledhill v. Hunter (1880) 14 CH.D. 492 a survival from the rule prevailing in ejectment actions modified by a limited application of the rule in Chancery that you might join in a suit to establish title to land any other cause of action so long as you did not make your bill open to objection on the ground of multifariousness. Up to the time of the Judicature Act of 1873 the common law Courts entertained actions for rent upon the covenant in the lease after ejectment on the ground of forfeiture for non-payment of rent: (see Hartshurne v. Watson (1838) 4 Bing. N.C. 178) but no necessity or reason exists for a separate suit for rent where there has been a forfeiture for non-payment, under the practice established by the Judicature Acts. and the Civil Procedure Code. Both the claim for possession and the claim for rent may be enforced in one suit without any inconsistency. And since they may be enforced they ought to be enforced in one suit provided the cause of action is the same, unless the Court gives leave for the reservation of one of the remedies.

4. We agree with the criticism expressed by the Allahabad High Court in Mewa Kuar v. Banarsi Prasad I.L.R. (1895 ALL. 533 that the wording of Sections 43 and 44 (now Order 11, Rules 2 and 4) ' is not happy and suggests confusion,' which confusion does not appear to us to be diminished by the addition of Clause (c) in Rule 4. We do not however, think that the words of Rule 4 imply that in all cases a suit for the recovery of immoveable property must necessarily be based upon a different cause of action to a suit for arrears of rent for the same land. There may be cases in which a suit for recovery of land will involve the production of different evidence to that necessary to support a suit for rent in respect of the same land : for example a suit for rent up to the date of a forfeiture for breach of covenant to repair would depend upon different evidence to that necessary to establish the breach of covenant and consequent right to possession. That, however, is not the case here.

5. The plaintiff apparently recognized that his claim for rent and his claim for possession arose out of one and the same cause of action but though in his plaint in the earlier suit he stated that he reserved his right to claim rent, he omitted to obtain the assent of the Court to the reservation. He is therefore barred by the express provisions of Order 11, Rule 2, from now suing for the relief so omitted. We affirm the decree of the lower Court and dismiss the appeal with costs.


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