(This reference to a Full Bench has been occasioned by a conflict of decisions of this Court in Channappa Girimalappa v. Bagalkot Bank : AIR1942Bom338 and Rama Kallappa Pujari v. Saidappa Sidrama Pujari AIR 1935 Bom 306. In both the cases the judgment is that of Sir John Beaumont, Chief Justice. The original question referred simply posed for out determination the conflict between these two decisions. In short which of them was right but after some preliminary discussion and with the consent of counsel for both the parties, we have reframed the question in order to bring out the real controversy between the parties in the litigation from which these two appeals have been filed. The question that we have now to determine is :-
Is the plaintiff's suit maintainable having regard to the provisions of O. 2, R. 2 and O. 2, R. 4 of the Code of Civil Procedure
2. The question arises upon the following facts : Gangabisan Sikchi was the owner of Kamal Theatre in Amravati town. He leased it out on 20-1-1945 to Shankarlal Rathi. The lease was for a period of ten year commencing from 20-1-1945 and is evinced by a registered rent note dated 6-1-1946 (Ex. P - 3). In 1949 there was a litigation between Gangabisen and Shankarlal. It was a suit (Civil Suit No. 40 - A of 1949) filed by Gangabisan for the ejectment of Shankarlal in the Court of the Second Additional District Judge, Amravati (Mr. B. V. Patwardhan). The suit ended in a compromise and by the compromise decree the agreement of lease dated 20-1-1945 was modified in two respects :-
(1) Instead of the amount of Rs. 525/- per month the rent originally fixed, the lessee agreed to pay Rs. 741/- per month. (2) By the agreement a second lessee was introduced namely, Saroj Screens (Pvt.) Ltd. This company was recognised along with Shankarlal as a co - lessee. In all other respects the agreement dated 6-1-1946 continued to operate.
3. In 1955 Gangabisan filed a suit for declaration of his title only (Civil Suit No. 26 - A of 1955) but later on decided to withdraw it and an order of withdrawal was passed on 28-8-1956 by Mr. B. B. Shrivastava, First Civil Judge, Class II, Amravati. No permission to bring another suit was asked for or granted.
4. The lease which was for ten years from 20-1-1945 expired on 19-1-1955. On that date the defendant, Shankarlal Rathi and Saroj Screens (Pvt.) Ltd., were in areas of rent, and according to the plaintiff, the lease had terminated by virtue of the operation of clause 7 of the rent note dated 6-1-1946. Clause 7 provided that the lessees will vacate the theatre as soon as the lease period was over, and in case the lessees continued in occupation of the theatre after the lease period was over, they would be bound to pay Rs. 20/- per day as penalty to the plaintiff Gangabisan in addition to the amount of rent, namely Rs. 741/-. Therefore, Civil Suit No. 36 - B of 1955 was filed on 19-12-1955. Therein the plaintiff Gangabisan claimed damages from the defendant for the period from 20-1-1955 to 19-11-1955 at the rate of Rs. 1341/- per month. The amount of Rs. 1341/- was comprised of two items, namely, Rs. 741/- the revised rent per month fixed and Rs. 600/- per month at the rate of Rs. 20/- per day, being the penalty. This suit substantially came to be dismissed (except for a small amount of Rs. 1210/5/0) in the Court of Mr. N. M. Koyal, Civil Judge No. 2, Amravati, who was also at that time an Additional District Judge, Amravati. The trial Court's judgment was however reversed by the District Judge, Amravati, Mr. M. S. Apte (now Mr. Justice Apte) in Civil Appeal No 17 - B of 1958 by the judgment dated 29-7-1959. A second appeal was filed and in that second appeal there was filed a remand order by the High Court and after the issue remanded was determined, that litigation came to be finally decided by this Court on 10-8-1965. (Second Appeal No. 396 of 1959). Thus it was finally determined that the defendants had ceased to be the tenants of Kamal Theatre, but no relief was asked for or granted as regards ejectment or possession of the theatre in this suit.
5.The present suit for possession was instituted on 21-1-1960. That is Civil Suit No. 3 - B of 1960 out of which the two appeals in which the present reference before us arises. In this suit, in addition to possession the plaintiff Gangabisan has also asked for damages from the two erstwhile lessees who are the defendants. The damages claimed are again at the rate of Rs. 1341/- per month from 19-11-1955 to 20-1-1960, i.e., commencing from the next succeeding date up to which damages had been claimed in the earlier suit, that is to say, Civil Suit No. 36 - B of 1955, and up to the date of the filing of the present suit. The Civil Judge, Senior Division, Amravati Mr. N. S. Huzurbazar, decreed the claim for possession and damages and also ordered future mesne profits to be determined under Order 20, Rule 12 (e) of he Code of Civil Procedure.
6.Among other defences to this suit, the defendants raised the plea that the suit for possession was barred under the provisions of Order 2, Rule 2 of the Code of Civil Procedure, because Civil Suit No. 36 - B of 1955 had been filed earlier between the same parties and the plaintiff had failed to include the whole of his claim which he was entitled to make in respect of one and the same cause of action. Therefore, he had incurred the penalty prescribed under O. 2, R. 2. According to the defendants the plaintiff must be held to have omitted to sue in respect of the claim for possession, or, at any rate, intentionally relinquished it and that therefore he cannot be allowed to sue in the present suit for possession. This plea is reflected in the following two issues before the Court :
'2. Is present suit for possession barred by Order 2, Rule 2 of Civil P. C. in view of C. S. No. 36 - B/55 ...............................?
3. Did plaintiff's right to possession become extinguished ..............................On 19-12-1955 due to C. S. No. 33 - B/55 ?'
The portions which we have omitted from these issues relate to similar other objections taken on the basis that Civil Suit No. 26 - A of 1955 had been earlier filed and Civil Appeal No. 17 - B of 1958 had been filed, and yet no relief for possession had been asked for and the present suit was barred on that account. These latter pleas, though raised, do not form the subject - matter of the reference before us though they may still be live issue between the parties. Against the judgment of the Civil Judge, Senior Division, the defendants were aggrieved by the substantial part of the decree awarding possession and the decree for Rs. 25, 815/- as damages, with interest. The defendants have therefore filed First Appeal No. 12 of 1970 in this Court. The plaintiff on his part was aggrieved by the trial Court's decree in so far as the full amount of damages claimed was not awarded but a lesser amount. He filed First Appeal No. 19 of 1970 and claimed the difference. In both these appeals, therefore, the issue does arise : Is the plaintiff's suit maintainable having regard to the provisions of Order 2, Rule 2, and Order 2, Rule 4 of the Code of Civil Procedure and that is the question upon which the reference has been made.
7.In order to determine this issue, it is necessary first of all to see what were the provisions of the rent note dated 6-1-1946 which was originally the contract between the plaintiff and the first defendant and was subsequently adopted also as the contract between the plaintiff and the second defendant, with a modification in the amount of the rent. The lease deed provides that Gangabisan has given on lease his theatre known as Kamal Theatre with furniture, electric fixtures etc, that is to say duly furnished, to Shankarlal from 20-1-1945 for a period of ten years, with an option to Shankarlal to renew the lease for a further period of five years on the same terms and conditions provided a three months' notice was given by Shankarlal to Gangabisan before ten years expired, i.e., before 19-1-1955.
8.The conditions of the lease which are material for our consideration were that the amount of rent payable was Rs. 525/- per month (subsequently Rs. 741/-) and it was to be paid in the first week of each next month. Then there was the following provision as to default :
'The party No. 2 (Shankarlal) will be paying the rent regularly to party No. 1 (Gangabisan). In case the party No. 2 fails to pay the rent for three months, then the party No. 1 may get party No. 2 ejected ; in spite of any law.' Clause 7 provided for ejectment and penalty as follows :
'Party No. 2 will vacate the theatre as soon as the lease period is over. In case party No. 2 continues in occupation of the Theatre after the lease period is over he will be bound to pay Rs. 20/- per day as penalty to party No. 1 in addition to the amount of rent.'
9.Now, the present contention is based only on the fact of filing of Civil Suit No. 36 - B of 1955. The plea raised in paragraph 6 of the written statement was as follows :-
'It is respectfully further submitted that it was imperative that in C. S. No. 36 - B of 1955 the plaintiff had to include the whole claim which he was entitled to make on 19-12-1955 in respect of the cause of action which was the determination of lease on 19-1-1955 by efflux of the time limited thereby and the consequent wrongful possession of the defendants thereafter. However the plaintiff omitted to sue in respect of a portion of his claim, i.e., his claim for possession of the demised property. He is, therefore, precluded under Order 2, Rule 2, C. P. Code, from instituting this suit for possession of the said property. It is further submitted that this suit for possession having become barred on 19-12-1955, this suit for mesne profits for the period subsequent on 19-12-1955 is also barred having regard to Order 2, Rule 3, C. P. Code.'
10.The plea is clear enough but it is based upon one assumption that the cause of action for filing of Civil Suit No. 36 - B of 1955 for mesne profits or damages as the case may be (there is a dispute as to that) is the same as the cause of action for the subsequent suit for possession, namely, Civil Suit No. 3 - B of 1960. If it is the same, then it will be barred under Order 2, Rule 2. The further point raised by the plea is that if on 21-1-1960, the date of Civil Suit No. 3 - B of 1960, the right to claim possession itself was barred, then the claim for damages of mesne profits for that period would also be barred because no one can claim mesne profits or damages who is not entitled to possession in the first place. The contention of counsel on behalf of the lessees has been precisely the same, also namely, that though the relief claimed in the earlier suit and the cause of action for the present suit for ejectment and possession is the same. The cause of action is the determination of the lease. It was submitted that in case of both the reliefs, namely, for mesne profits or damages and for ejectment, the cause of action arose on 20-1-1955 when the ten years' period of lease expired. In both the cases, therefore, the cause of action was the same and arose on the same day. Secondly, the cause of action arose out of one and the same contract. Clauses 1 and 7 of the contract which we have referred to above were relied upon. It was further submitted that under the law also the cause of action for mesne profits and for possession of one and the same property are not different cause of action but one and the same cause of action, and if so, the whole of the claim, namely, for mesne profits and/or damages as well as for possession ought to have been made in Civil Suit No. 36 - B of 1955, and if it was not so made, Order 2, Rule 2 is decisive of the point and bars the claim in the present suit. In this connection, counsel also pointed to the history of legislation and how Order 2, Rule 2 and Order 2, Rule 4 came to be enacted. He relied upon the provision of the earlier Acts, the Code of Civil Procedure of 1859 (Act No. 8 of 1859) and the Code of Civil Procedure of 1882 (Act No. 14 of 1882), and pointed out that in the Act of 1859, by fiction, a suit for recovery of land and a claim for mesne profits of such land were deemed to be distinct causes of action. That was by Section 10 of that Act, but that section has been dropped and there is no equivalent section in the present Code and therefore it must be held that what was there deemed distinct and therefore a claim for recovery of land and a claim for mesne profits are one and the same cause of action.
11.On behalf of Gangabisan, the owner of the property, the answer to these contentions was that Order 2, Rule 2 only applies where the cause of action is one and the same and that it cannot apply where the causes of action are different, and the cause of action in Civil Suit No. 36 - B of 1955 was separate and distinct from the cause of action in Civil Suit No. 36 - B of 1960. Therefore, there is no scope for the application of O. 2, R. 2. It was pointed out that in Civil Suit No. 36 - B of 1955 the claim was a claim upon the personal convenant to pay damages by way of penalty contained in clause 7 of the lease deed. It was a claim which had nothing to do with the claim for the possession of the property. The claim for the possession of the property, even assuming that it was under the same contract, was a claim on a separate cause of action which is radically different from the cause of action for mesne profits or damages. Reliance was placed upon the provision of O. 2, R. 4, and it was urged that clauses (a) and (b) of that provision of the Code shows that a claim for mesne profits or for damages is found upon a different cause of action from the cause of action for recovery of immovable property. To the latter argument the reply of Mr. Deo on behalf of the lessees was that Order 2, Rule 4, is merely an exception to O. 2, R. 3, which prescribes when several causes of action may be joined and that an exception couched as an exception cannot be construed to alter the nature of the cause of action. It was also urged that Order 2, Rule 4, only applies where the cause of action is one and the same and it cannot apply where the cause of action is different.
12.Order 2, Rules 1, 2 and 4 of the Code of Civil Procedure run as follows :-
'Frame of Suit. - Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.
2. (1) Suit to include the whole claim. - 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) Relinquishment of part of claim. - 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) Omission to sue for one of several reliefs. - 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, or relinquished.
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.
Illustration. - A lets a house to B at a yearly rent of Rs. 1,200/-. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.
* * * * * * * * *
4. Only certain claims to be joined for recovery of immovable property. - No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except -
(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof ;
(b) claims for damages for breach of any contract under which the property or any part thereof is held and
(c) claims in which the relief sought is based on the same cause of action; provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.'
13.All these rules are to be found in Order 2 which is entitled 'Frame of Suit', and that is precisely also the subject of Order 2, Rule 1. Order 2, Rule 1 merely prescribes a general rule that as far as practicable every suit shall be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. This is more in the nature of a general policy statement than a mandatory provision. it lays down the principle which underlies the subsequent Rules 2, 3 and 4. The words 'as far as practicable' indicate that in each case the Court will have to see whether it was practicable for the plaintiff, so to frame his suit as to include a cause of action which he has omitted or intentionally relinquished. The words 'subjects in dispute' may also be noted. In the subsequent three rules there are several different expressions used such as 'cause of action', 'claim', and 'relief', and 'obligation' and it seems to us that only in Order 2, Rule 1, was the generic expression 'subjects in dispute' deliberately used because Rule 1 was intended to lay down only a general statement as to the policy of the law. Though some of the causes have in considering this expression equated it with 'cause of action', it seems to us that this generic expression 'subjects in dispute' would equally comprise within it 'cause of action' or 'relief' or 'claim', as the context may require.
14.The case we have in mind where the expression 'subjects in dispute' was equated with 'cause of action' is to be found in Ramaswami Ayyar v. Vythinatha Ayyar ILR(1903) 26 Mad 760, where the learned Judges put it thus :
'In our opinion the expression 'the subject in dispute' signifies the jural relation between the parties to the suit, for the determination of which the suit is brought. In other words, the object of Section 42 (They were dealing with the Act of 1882. Section 42 is the same as Order 2, Rule 1) is to require the plaintiff to bring forward his whole case as to the matter of litigation on the question of right involved in the suit and not to require him to unite all the causes of action which he may have against the defendant in respect of the corpus or object - matter of the suit.'
15.Turning to Order 2, Rule 2, sub - rule (2) gives an option to the plaintiff to relinquish any portion of his claim, but if he so relinquishes, then he incurs a penalty. The provisions of Order 2, Rule 2, sub - rule (2), would come into play and the penalty prescribed therein is that 'he shall not afterwards sue in respect of the portion so omitted or relinquished.' Apart from this option, Order 2, Rule 2, sub - rule (1), lays down the mandatory principle that every suit must include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Sub - rule (3) of Order 2, Rule 2, speaks of more than one relief in respect of the same cause of action in contrast with sub - rule (1) which speaks of the whole of the claim in respect of a cause of action. It is clear that the combined effect of these sub - rules is (a) that where there is one and the same cause of action, the plaintiff must sue in one suit for the enforcement of the whole of that cause of action, then he relinquishes or omits to sue in respect of any part of that cause of action, then he cannot subsequently sue for the part so relinquished or omitted in any other suit, and (b) that although there may be one and the same cause of action, there may in respect of that cause of action be several reliefs claimable. If there are several reliefs then they must all be sued for in one and the same suit, unless leave of the court is obtained. If there is an omission to sue for any relief arising out of the same cause of action, then the plaintiff 'shall not afterwards sue in respect of the portion so omitted or relinquished.'
16.The fundamental postulate for the application of Order 2, Rule 2, therefore, is that there must be one and only one cause of action in fact before its several provisions can apply. Of course, the Explanation creates by fiction one and the same cause of action in the case of successive claims arising under the same obligation. Obviously these successive claims, although arising under the same obligation, will normally give rise to different cause of action but the explanation says that they are to be deemed to constitute but one cause of action. The illustration itself to Order 2, Rule 2, also makes this clear. The rents for the three years 1905, 1906 and 1907 which are due and unpaid would obviously and normally be regarded as different cause of action having arisen at the end of each of those respective years, but because of the Explanation they being successive claims arising under the same obligation, they would be regarded as one and the same cause of action.
17.Order 2, Rule 2, does not require that when a transaction gives rise to several causes of action they should all be combined in one suit, or that the plaintiff must, if necessary, lay his claim alternatively in the same suit for these different causes of action. All that O. 2, R. 2, provides is that where there is one and the same cause of action, the plaintiff cannot split up his cause of action and sue for one part in one suit and for another part in another suit. As the Privy Council put it in Naba Kumar v. Radhashyam , 'the rule in question is intended to deal with the vice of splitting a cause of action'. Thus, the applicability of O. 2, R. 2, depends upon there being established one and the same cause of action in the two suits. The defendant who raises the plea must establish that the second suit was in respect of the same cause of action as the previous suit. Therefore, in the present suit, all we have to determine in order to settle the disputes referred is whether the cause of action for the subsequent suit for possession was the same as the cause of action for mesne profits or damages in the first suit (Civil Suit No. 36 - B of 1955).
18.What is a cause of action is now settled beyond any doubt. The classic definition of that expression is that of Lord Justice Brett in Cook v. Gill (1873) 8 CP 107.
' 'Cause of action' has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed, - every fact which the defendant would have a right to traverse.'
Lord Justice Fry put it in the negative by saying. 'Everything which, if not proved, gives the defendant an immediate right to judgment, must be part of the cause of action.' This definition is the basis of all subsequent decisions containing an interpretation of the expression 'cause of action.' It was accepted in Deep Narain Singh v. Dietert ILR 31 Cal 274 and by the Privy Council in Mohammad Khalil Khan v. Mohbub Ali Mian at p. 86, para 61 point No. 2. This has been referred to in several cases as the media upon which the plaintiff asks the Court to arrive at the conclusion in his favour :see the Privy Council case Chand Kour v. Partap Singh (1889) ILR 16 Cal 98 (PC) and in Hiromal v. Faridkhan AIR 1915 Sind 35 , a case upon which Mr. Deo strongly relied and in Sheokumar Singh v. Bechan Singh : AIR1940Pat76 , by Rowland, J. at p. 79.
19.These cases also make it clear that the cause of action in a suit has no reference to the defence taken in the suit, nor is it related to the evidence by which that cause of action is established. In Mohammad Khalil Khan's case to which we have referred above, this point is made in the Judgment of the Privy Council in para 61, point No. (5), as follows :-
'The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers ....................to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.'
The Privy Council followed their earlier decision in (1889) ILR 16 Cal 98 (PC). This decision has been relied upon also in : AIR1940Pat76 . Secondly the cause of action must be distinguished from the evidence upon which that cause of action is proved and though one has no relation to the other, still the nature of the cause of action may be indicated by the nature of the evidence by which it is supported. This again is made clear in Mohammad Khalil Khan's case para. 61 at p. 86 in points Nos. 3 and 4 which are put as follows :-
'(3) If the evidence to support the two claims is different, then the causes of action are also different .........................
(4) The cause of action in the two suits may be considered to be the same if in substance they are identical ...............................'
20.Now Order 2, Rule 4 was strongly relied upon on behalf of the plaintiff in order to show that the cause of action upon a suit for the recovery of immovable property is different from the cause of action for either mesne profits or damages. Undoubtedly, O. 2, R. 4, opens with a clause which lays down a general principles that no cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property. It has been explained in the authorities that that was a rule which was a rule of Common Law in England, the rule being a salutary rule that a claim to property should not be complicated by joinder of other causes of action except by leave of the Court. But that rule is subject to the three exceptions mentioned in clauses (a), (b) and (c) of O. 2, R. 4. Those authorities explain what was the result of the engraftment of equitable principles upon the Common Law doctrine. Equity went thus far and no further, in that, it recognised that a claim for mesne profits or arrears of rent could be joined with the claim for recovery of the immovable property from which it arises or that a claim for damages for breach of any contract could be joined with a suit for recovery of that immovable property or any part of it which is held under a contract from which the claim for damages for its breach arises.
21.Rule 4 uses the expression 'cause of action' in the opening part, and the word 'claims' in clauses (a), (b) and (c) which form the exceptions, and this difference in the two expressions appears to have been made only the purpose of avoiding confusion and for the sake of clarity of language. It is not possible to hold that an exception refers to a different subject from the general rule to which it is an exception. It cannot be that the exceptions refer to claims while the general rule to which they are exceptions refers to cause of action. Necessarily, it seems to us that we must construe 'claims' in clauses (a), (b) and (c) of Rule 4 to be equivalent to 'cause of action' in that rule. The different words are used only in order to avoid repetition and for convenience of expression, specially having regard to the language of clause (c).
22.Now, it is clear upon a plain reading of Order 2, Rule 4, that it regards the cause of action or claim for mesne profits or for damages as different from the cause of action for the recovery of immovable property. If it was the same, then there was no need to state the exceptions in clauses (a), (b) and (c),because Order 2, Rules 1 and 2, make ample provision for the same cause of action. It seems to us therefore that there is the amplest indication in O. 2, R. 4 that the cause of action for a suit for recovery of immovable property is not the same as the cause of action for damages for breach of any contract under which the property or any part thereof is held. We will hereafter confine ourselves only to a case for damages for breach of contract because, as we shall presently show, the plaintiff's suit, Civil Suit No. 36 - B of 1955, was a suit for damages only and not a suit for mesne profits, and the same was the case with the claim in the subsequent suit, Civil Suit No. 3 - B of 1960.
23.Mr. Deo on behalf of the lessees has urged that first of all Order 2, Rule 4, cannot be read along with O. 2, R. 2. He says that Order 2, Rule 4 applies only where there is one cause of action and so read it is nothing more and nothing less than a mere exception to Order 2, Rule 3. Order 2, Rule 2, sub - rules (1) and (2) deal with cases where there are several causes of action or several reliefs but Order 2, Rule 4 deals with only one and the same cause of action. Therefore they cannot be read together. Order 2, Rule 3, provides for the joinder of several causes of action and says that a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly or several plaintiffs having causes of action in which they are jointly interested against the same defendant or defendants jointly may united them in one suit (we need not refer to the second part). This Rule is prefixed by the words 'Save as otherwise provided', and it is clear that it is inter alia 'otherwise provided' in Order 2, Rule 4. Therefore, counsel urged that Order 2, Rule 4, must only be read with Order 2, Rule 3 and cannot be read as qualifying any part of Order 2, Rule 2 which deals with more than one cause of action or more than one relief.
24. We cannot read O. 2, R. 4 as entirely divorced from Order 2, Rule 2. No doubt Order 2, Rule 3 is an exception to Order 2, Rule 3 but it does not therefore follow that it has nothing to do with Order 2, Rule 2. On the other hand, it seems to us that Order 2, Rule 4, forms an important qualification to both Order 2, Rule 2, and Order 2, Rule 3. Order 2, Rule 2 (1) as we have already said, lays down the general principles that a suit must include the whole claim which the plaintiff is entitled to make in respect of a cause of action, and if he does not, then he is visited with the penalty in Order 2, Rule 2 (2). Similarly, Order 2, Rule 2 (3) provides that reliefs arising out of the same cause of action shall be sued for in one and the same suit and again attaches a penalty if the plaintiff omits to do so. Thus Order 2, Rule 2, deals with one and the same cause of action. Order 2, Rule 3, on the other hand, deals with several causes of action and makes the contrary provision. It permits the plaintiff to unite several causes of action in one suit under certain circumstances. Where Order 2, Rule 2, deals with the same cause of action and prohibits its splitting, O. 2, R. 3 provides for the joinder of several causes of action. Therefore, inter alia they deal with two different aspects of the same subject viz. joinder of causes of action. Now, no doubt an exception to Order 2, Rules 2 and 3 is created by Order 2, Rule 4. Its opening part says that no cause of action shall be joined with a suit for the recovery of immovable property. to that extent this provision is an exception to Rule 2 (1) and Rule 2 (3) which respectively enjoin that a plaintiff must include his whole claim in respect of a cause of action and claim all the reliefs he is entitled to in respect of the same cause of action. It is also an exception to Order 2, Rule 3 (1) which permits several causes of action to be joined by the plaintiff against the same defendant or the same defendants jointly. Clauses (a), (b) and (c) of Order 2, Rule 4 create further exceptions to the general principle laid down in the opening part of Order 2, Rule 4; Order 2, Rule 4, therefore deals with a specific subject, namely, claims which could be joined in a suit for the recovery of immovable property, and to the extent that special provision is so made on a special topic, its provision qualify the general provision of both Order 2, Rule 2 and Order 2, Rule 3. In fact, Order 2, Rule 3 is expressly made subject to the O. 2, R. 4 by the sue of the words 'save as otherwise provided'. Thus, though Order 2, Rule 4, is in part an exception to the general principle laid down in Order 2, Rule 3, it is also an exception to O. 2, Rr. 2 (1) and 2 (3). We cannot regard it as only an exception to Order 2, Rule 3, and completely divorced from Order 2, Rule 2.
25. Order 2, Rule 2 must therefore be read along with Order 2, Rule 4. We have already shown how in Order 2, Rule 4 claims for mesne profits and claims for damages are contrasted and contra distinguished from the cause of action for the recovery of immovable property, and in so far as they are contra distinguished, it is clear that the law regards the two as different claims or causes of action. We have already shown that there is no difference between the words 'cause of action' and 'claims'.
26. This brings us to the historical argument urged by Mr. Deo. It is based upon the provisions of the Code of Civil Procedure of 1859 (Act No. 8 of 1859). The provisions of Section 7, 8, 9 and 10 of that Act were subsequently re - enacted with considerable modification in Ss. 42, 43, 44 and 45 of the Civil P. Codes of 1877 and 1882 (Acts No. 10 of 1887 and No. 14 of 1882 respectively). These provisions were in turn recast and re enacted in Order 2, Rules 1 to 6 of the present Code. Sections 8 to 10 of the Code of Civil Procedure of 1859 were as follows :-
8. Joinder of causes of action in the same suit. - 'Causes of action by and against the same parties, and cognizable by the same Court, may be joined in the same suit,' provided the entire claim in respect of the amount or value of the property in suit do not exceed the jurisdiction of such Court.
9. Court may in certain cases order separate trials of such causes of action - If two or more causes of action be joined in one suit and the Court shall be of opinion that they cannot conveniently be tried together, the Court may order separate trials of such causes of action to be held.
10. Claim for recovery of land for mesne profits to be deemed distinct causes of action. - A claim for recovery of land and claim for mesne profits of such land shall be deemed to be distinct causes of action within the meaning of the last two preceding sections.'
Section 10 made provisions analogous to Order 2, Rule 4, of the present Code. It says that a claim for recovery of land and a claim for mesne profits of such land 'shall be deemed to be distinct causes of action'. This is the provision which was stressed before us. It was urged that by the word 'deemed' there was created a fiction by which the cause of action for recovery of land and the cause of action for mesne profits were deemed to be distinct causes of action. The creation of such a function necessarily implies that that the state of affairs which is postulated in the fiction is not so in facts. Therefore, it was urged that but for that fiction a claim for recovery of land and a claim for mesne profits was in fact one and same cause of action but were only deemed to be distinct causes of action by virtue of the fiction. The next stage of this argument is that this fiction was omitted when the Code of 1877 was enacted. It was also omitted in the Code of 1882 and in the present Code. The historical background thus shows that from the ver inception the law regarded a suit for recovery of land and a claim for mesne profits as founded upon one and the same cause of action. It was only a distinct and separate cause of action by the creation of a fiction, and if that fiction is not re - enacted into the present Code, then its original nature as one and the same cause of action revives.
27.WE are quite unable to accept this argument. We have already referred to the provisions of Order 2, Rule 4, and we have shown that it clearly mentions 'a suit for recovery of immovable property' contrapuntally with 'claims for mesne profits' or 'claim for damages'. That necessarily implies that they are separate and distinct causes of action. Thus, what are enacted in the Code of 1859 is in the present Code assumed by the law itself. It was not considered necessary to say so explicitly. The whole basis of assumption of Order 2, Rule 4, is that they are two separate and distinct causes of action. If it were necessary to go as far as that, we would say that the law has read that fiction of Section 10 of the Code of 1859 into Order 2, Rule 4. At any rate, a historical argument like this cannot prevail against the plain reading of the words of Order 2, Rule 4. We think that it is clear beyond any doubt that claims for damages and claim for mesne profits are regarded as distinct and separate causes of action from the cause of action for recovery of immovable property, and Order 2, Rule 4, says that they may be joined together, whereas otherwise they could not be joined together because of the general principle contained in the opening words of O. 2, R. 4.
28. So much for the law on the subject. We mow turn to apply these provisions of the law to the present case. The test for the application of Order 2, Rule 2, was laid down by the Privy Counsel in , point No. 1 as follows :
'(1) The correct test in cases falling under Order 2, Rule 2 is 'whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit'. Moonshee Buzloor Raheem v. Shumsoonissa Begum, 1867 - 11 Moo Ind App 551 .......................'
It was also pointed out there that if the evidence to support the two claims if different, then the cause of action is different. But the cause of action in the two suits may be considered the same if in substance they are identical. In the light of these tests, we turn to examine the plaints in the two suits in question.
29.The plaint in Civil Suit No. 36 - B of 1955 is at Ex. D - 32 and it claimed only an amount of RS. 7,129/4/9 as damages. It seems that there was a dispute between the plaintiff and the defendants as to whether the defendants had validly exercised the option of renewal of the lease for a further period of five years and therefore the plaintiff made an alternative claim in the relief clause of the plaint by adding the words 'or even rent as put forth by the defendant holding that there is no exercise of the option about renewal for the further 5 years from 20-1-1955'. Include in this claim was either the rent as rent or as damages at the rate of Rs. 741/- per month plus the penalty of Rs. 20/- per day as stipulated in clause 7 of the lease deed. In paragraph 7 of the plaint, the plaintiff stated :
'That consequently the defendants have no right to occupy the theatre from 20-1-1955 onwards. They ought to have vacated the theatre by the end of 19th January 1955 as the lease expired on that day and that there is no renewal. They failed to vacate the theatre, but have continued in occupation of the same. Hence the condition No. 7 has come into operation and the defendants are bound to pay Rs. 20/- per day in addition to rent of Rs. 741/- per month agreed to and substituted for Rs. 525/-.'
Thus, the cause of action in the first suit (Civil Suit No. 36 - B of 1955) is one purely for damages on the ground that the defendants are continuing in possession of the plaintiff's property without right. In Civil Suit No. 3 - B of 1960 the plaintiff also prayed for damages but for a future period from the date of Civil Suit No. 36 - B of 1955 namely, the period from 19-11-1955 to 20-1-1960 at the same rate of Rs. 741/- per month but also Rs. 20/- per day, being the penalty under Clause 7. But it is not this part of the claim on which the bar of Order 2, Rule 2, is pleaded. It is on the claim for possession of the theatre contained in clause (i) of the relief clause of the plaint. This claim was stated in the body of the plaint in paragraph 6 as follows :-
'So from 20-1-1955 the defendants are trespassers and the plaintiff is entitled to get possession and the further damages on the basis of his title, particularly as the defendants have not got any registered lease deed of the so - called renewal. The defendants are all the more trespasses inasmuch as even the period of the 5 years for which the defendants could have claimed a renewal, if at all, has, by now expired and that too without any registered lease deed and in any case the plaintiff is entitled to get the possession and damages.'
Now, it is patent upon these pleadings contained in the two plaints that the causes of action in the two suits were radically distinct and separate. In the first suit, the plaintiff alleged that the term of the lease having determined, clause 7 came into operation because the defendants continued in possession although they were bound to give back possession to the plaintiff. Whatever was the claim, whether for damages or for rent, it was a claim under the contract between the parties dated 20-1-1945 and embodied in the registered rent note dated 6-1-1946. But the claim for possession in the subsequent suit was not a claim under the terms of the contract at all. It was a claim made by the plaintiff on the basis of his own title as the owner of the property. The plaintiff could claim possession under two titles, (1) as a lessor under the contract of lease and (2) as the owner of the property claiming title to it as such. He could claim possession under his right to get back possession on the terms of the contract of lease. The defendants had cleared stipulated that 'party No. 2 (defendants) will vacate the theatre as soon as the lease period is over'. The plaintiff could have sued upon this document and the claim in that case would have been under the contract. But the plaintiff in the subsequent suit did not sue upon the contract but he sued upon his general title as the owner of the property. He alleged that the defendants were trespasses and that the plaintiff was entitled to get possession and further damages on the basis of his title as stated in the passage we have quoted above. Therefore, the plaintiff was claiming in the second suit on the basis not of a title arising under the contract but he hors the contract. In other words, the plaintiff was seeking to enforce in the subsequent suit his general title as owner and not his title to get back the property under the contract of lease. It is clear therefore that this title was superior to the contract between the parties and it was by virtue of this superior title that the plaintiff claimed in the second suit. The respective causes of action in the earlier suit and in the subsequent suit were therefore entirely distinct and separate.
30.Mr. Deo however urged that nonetheless the plaintiff's cause of action in the second suit was the same as in the first suit because, as he put it, the foundation of the claim in both the suits was the termination or determination of the lease and the determination took place on 20-1-1955, from which date he could claim possession as well as mesne profits or damages. he claimed damages in the first suit and therefore he could not claim possession in the second suit. He also pointed out that both the amounts claimed in the second suit of Rs. 741/- per month and Rs. 20/- per day as penalty are amounts stipulated under the contract.
31.The error in the argument lies in regarding the second suit as a suit filed on the basis of the lease deed. We have already shown how the plaintiff pleaded his cause of action in paragraph 6 of the plaint, and in the passage which we have quoted he clearly and unequivocally said that the defendants were trespassers and that he was claiming damages on the basis of his title. He also added 'particularly as the defendants have not got any registered lease - deed of the so - called renewal'. In other words, the plaintiff, for the purposes of his second suit, decided simply to ignore the cause of action upon the lease, and its determination. He merely said that he was the owner and under his title as owner he was entitled to possession. No doubt, there had been a lease but that lease had determined and the plaintiff merely ignored it for the purposes of his suit. If that was the shape of the suit, then the cause of action pleaded was not the cause of action arising under the contract.
32.The mere fact that the plaintiff chose to adopt the same measure of damages as he might have got under the contract will make no difference, because even in a title suit the plaintiff can always assess his own damages and in this case he chose to assess them at the same rate as agreed upon between the parties. That does not mean that the suit was on the basis of that agreement.
33.Even assuming however that it was a suit arising upon the same contract as the claim for damages, we do not think that the two causes of action would be the same. The claim in the first suit was for damages and it was therefore a recurring cause of action arising from month to month unlike the second suit where it arose once and for all on 20-1-1955. No doubt, the commencement of both the causes of action under the contract would be on the same date and would depend upon the determination of the lease and that has enabled counsel on behalf of the lessees to show some similarity in the causes of action. But the basic nature of the claim for damages and/or meaner profits and the claim for possession as a landlord is different.
34.To take this very case, on 20-1-1955 the lease was determined. The plaintiff could on the morning of that very day have filed a suit for possession under the contract, but he could not at the commencement of that day have filed any suit for damages because no damages had accrued. It was only after either the first day or the first month, as the case may be, had elapsed under the wrongful occupation by the defendant - lessees that the claim for damages would accrue. Thus, the claim for damages depended upon proof of some other facts in addition to the mere determination of the lease on a particular day. The plaintiff would have to allege that the defendants wrongfully continued in occupation after 20-1-1955 and only then would he be entitled to claim the relief of damages. That shows that the cause of action for possession and the cause of action for claiming damages were not the same. The terms of the document itself indicate this. The right to damages would rest upon the provisions of Clause 7 and but for that clause the right to the additional Rs. 20/- per day as penalty would not arise in favour of the plaintiff, although the right to take possession would still arise. It was a completely different stipulation which was the foundation of the claim for damages in the first suit and a different stipulation in the contract on which the claim for possession could be founded. This is clear from the penultimate part of clause 1 of the document which says :
'In case the party No. 2 fails to pay the rent for three months, then the Party No. 1 may get party No. 2 ejected; in spite of any law'.
The distinction is well brought out (and we say so with great respect) in a passage in Loknath v. Dwarika : AIR1931Pat233 :-
'Now claims for mesne profits and ejectment are distinct reliefs and may or may not arise out of the same cause of action. The right to eject the defendant arises the moment the possession of the defendant becomes unlawful. The right to mesne profits arises at different times when the profits accrue to the defendant. The date of the cause of action for ejectment is one fixed date, whereas the dates of cause of action for mesne profits are several. Order 2, Rule 4, to my mind distinctly recognizes that the cause of action for mesne profits, for unless they were two distinct and separate entities there was no necessity for providing in the aforesaid rule for their uniting together in one single claim against the defendant'.
35.Another decision which takes the same view and which was relied upon in the same judgment also confirm the view we have taken, and is reported in Tirupati v. Narsimha ILR(1888) 11 Mad 210. That was a case which turned upon the provisions of Section 43 of the Code of 1877 which is substantially the same as Order 2, Rule 2, and the facts in that case were also very similar to the facts in the present case. The plaintiff in that case had sued the defendant, his lessee, for mesne profits for three years but did not claim possession of the land. The suit came to be dismissed on a preliminary point (what that preliminary point was is not clear). Then in the second suit the plaintiff sought to recover possession of the land leased and further mesne profits and the plea was taken that the second suit was barred under the provisions of Section 43 of the then Code of Civil Procedure. In that case also the Explanation to Section 43 which was in the same terms as the Explanation to Order 2, Rule 2, was invoked, but the Division Bench held at page 211:
'Though it is true that claims, such as those mentioned in the illustration to Section 43, are referable to the same cause of action on the ground that, when the rent remains unpaid for several years, the debts due, though consisting of several items, are so connected as to form one entire demand, yet it cannot be held that, when the causes of action are distinct and independent, the plaintiff is bound to unite all the claims founded upon them in one suit. We are of opinion that the suit to recover mesne profits and the suit to eject are not parts of a claim founded on the identical cause of action within the meaning of Section 43, and that if mesne profits are alone claimed in the first suit as damages due for adverse occupancy, a second suit can be maintained to recover possession of the land ........................It would be preposterous to say, as is suggested for the appellants, that, assuming that the respondent succeeded in the former suit and obtained a decree for mesne profits, he would still be precluded from claiming possession of the land'.
This decision was strongly attacked by Mr. Deo on the ground that in an earlier case reported in the same volume, the same two Judges had taken a contrary view. That case is to be found in Venkoba v. Subbanna ILR(1888) 11 Mad 151. Some of the remarks there made undoubtedly suggest a contrary view, but the position in that suit was exactly contrary to the position in the present suit and in ILR(1888) 11 Mad 210 . The question in that case was whether a plaintiff who sued for possession of land only without suing for mesne profits in respect of the same land which he could have done in the same suit is entitled to bring another suit to recover the said mesne profits and the Division Bench held that Section 43 was a bar to the subsequent suit for such mesne profits. This and several similar other cases which were cited before us are the reverse of the position in the present case. In all those cases the was first a suit for possession simpliciter and then a suit for mesne profits in respect of that property. It may be that in determining whether in such cases the two causes of action can be combined some consideration of the Explanation to Order 2, Rule 2 would not arise in so far as it lays down that successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. That category of cases however is distinguishable from the case as here, where first a suit for damages or mesne profits simpliciter is filed and then a suit for possession. However, we must not be understood to imply that we endorse anything decided in ILR(1888) 11 Mad 151. In our opinion, the present case is squarely governed by the decision in ILR(1888) 11 Mad 210.
36. A similar view has also been taken in Rangamma v. Venupurnachandra Rao, : AIR1966AP325 where the Division Bench held :
'The irresistible conclusion, therefore, which must follow from the said set of Rules, is that a cause of action for recovery of immovable property is distinct and separate from a cause of action for mesne profits of the property claimed.'
In that case also after earlier suits for mesne profits a suit for recovery of possession had been filed and the bar of Order 2, Rule 2, was thus negatived.
37. Thus we hold that the second suit before us (Civil Suit No. 3 - B of 1960) was based on a distinct and separate cause of action upon a plain reading of the plaints in the two cases. For the application of Order 2, Rule 2, the cause of action must be one and the same and since here we have found upon the facts that the two suits were founded upon two distinct and separate causes of action, the question raised in this reference must be answered in the affirmative.
38. This would be sufficient to dispose of the reference before us, but the original of the controversy, namely, the different views taken in : AIR1942Bom338 and AIR 1935 Bom 306 still remains. However, since both these decisions are distinguishable from the instant case, it is unnecessary , in our view, to resolve the controversy. In view of the construction which we are placing on the relevant provisions of the Code of Civil Procedure, we would however like to observe that we very much doubt if the decision in Channappa's case is a correct decision. it relied on the Privy Council decision in . In that case in the first suit the plaintiffs had asked only for a declaratory relief in respect of a certain mortgage decree that had belonged to them. They subsequently amended that plaint and prayed for its assignment. This prayer was granted to them by the ;earned trial Judge, but in the High Court at their instance the decree was varied giving them a decree for the conveyance of the properties 'with a necessary accounts' and the High Court also ordered that the property should be conveyed to them. After this had happened, in the second suit the plaintiffs asked for an account of the rents and profits which the defendants had received while they were in possession of the property for some time. Thus, the second suit was not a suit for either mesne profits or damages at all, but a suit to take an account from a person who had been illegally realizing rents and profits on behalf of the plaintiffs. This is clear from the following passage in the judgment at p. 230 :
'The present suit of the respondents is based upon the allegation that after the execution purchase of the properties by the appellants the latter were for some time in receipt of the rents and profits for which they have not accounted, and for prayer of the plaint is for account and payment.
(the underlying is ours)
It was on this very ground also that the Privy Council held the subsequent suit barred because it held that both the first suit and the second suit were for accounts. Their Lordships held :
'The relief which the respondents claim in the present suit is an account of the rents and profits of these properties received by the appellants after their purchase and before the conveyance to the respondents. It is, their Lordships think, equally clear that this relief cold have been claimed in the previous suit'. It is this decision which was said to support the view taken in : AIR1942Bom338 . We do not think that the Privy Council case could support the decision of the Divisional Bench. Order 2, Rule 4, was sought to be explained away by reference to the Rules of the Supreme Court in England. Order 14, Rule 2, of the Rules of the Supreme Court , 1883, was referred to, though we suppose that more appropriately the reference was to Order 18, Rule 2. But we are unable to see how the reference to any English Rules of the Supreme Court could make any difference, nor is it explained why they would make any difference. The other reason in that case that the cause of action under Order 2, Rule 2, has a wider meaning than the expression in Order 2, Rule 4, is not supported by any reasoning nor by any consideration of Order 2, Rule 2 read with O. 2, R. 4. The remark that the provision in O. 2, R. 4, may have been inserted ex abundant cautela does not advance the case nay further because the contention of Mr. Deo, in the present case has been that clauses (a), (b) and (c) of Order 2, Rule 4 were really superfluous and not that they were inserted ex abundanti cautela. Lastly, the same learned Chief Justice took a contrary view in AIR 1935 Bom 306 wherein he followed the decisions in Ram Karan Singh v. Nakchhad Ahir. : AIR1931All429 ; Ponnammal v. Ramamindha Ayyar. AIR 1915 Mad 912 : ILR 38 Mad 829 and Kalidas Rakshit v. Keshblal Majumdar : AIR1931Cal788 and there the learned Chief Justice rightly remarked that Order 2, Rule 2, 'deals with claims arising under the same cause of action, and it does not require the joinder of different causes of action'. As regards Order 2, Rule 4, the Division Bench in that case held :-
'The language of Order 2, Rule 4, which provides that no cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except '(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof', certainly suggests that the legislature regarded a claim for possession of immovable property, and a claim for mesne profits in respect of that property as being separate causes of action. And the language of Order 20, Rule 12, rather suggests the same conclusion ......................................'
In the face of these remarks which, we think, were correctly made (and we say so with great respect), we fail to see how it could be held in the subsequent case in : AIR1942Bom338 that the provision in Order 2, Rule 4, 'may have been inserted ex abundanti cautela without intending to lay down that the causes of action for possession and for mesne profits or arrears of rent accruing were distinct'. However, as we have said, both these Bombay cases do not directly apply to the present case, much less so would they apply upon the finding which we have given that in the present case the cause of action on which the second suit was founded was entirely different from the cause of action in the first suit.
39.Several other decisions were relied upon on both the sides to suggest that the cause of action in a suit for possession and the cause of action in a suit for mesne profits are entirely different or are one and the same. None of these cases is upon identical facts and is in any case distinguishable from the facts of the present case. None of these cases moreover, was a case where first a suit for damages was filed and then a suit for possession. We need not refer to each of these cases individually, because in our opinion, they do not apply to the facts of the present case. In Gurubux Singh v. Bhooralal, : 7SCR831 the Supreme Court in fact entertained a suit for possession and mesne profits after a previous suit for recovery of mesne profits only. The bar of Order 2, Rule 2, was urged but the Supreme Court did not consider it because the defendant 'had not placed before the Court material for the purpose of founding a plea of O. 2, R. 2, Civil P. C.' That in itself would show that it is not in every case as a matter of law that the claim for mesne profits and the claim for possession would be either one and the same cause of action or different causes of action. It is a matter which falls to be decided upon the claim made in each case and the nature of the cause of action therein pleaded.
(The rest of the judgment is not material for this report).
Answered in the affirmative.