1. The preliminary objection raised by the learned Advocate General to the maintenance of this suit must be allowed. The learned Subordinate Judge does not appear to have borne in mind the legal consequence of the previous litigation. That was a suit brought by the present plaintiff on the agreement which forms the basis of the present suit also. It has been urged before us by Mr. Branson that it is not so. But a perusal of the present plaint will show that the plaintiff in paragraph 4 distinctly refers to the previous suit, to the agreement which formed the basis of it and to the leave which was given by the judgment in that suit to bring the present suit. It is also clear from the said plaint that this suit is brought as a result of that leave.
2. Now, the cause of action in the previous suit was a breach of the very contract which is now in dispute. The plaintiff chose, one of the stipulations in that agreement and claimed relief in respect of it. And with reference to the other stipulations of which breach was alleged, the plaint in the previous suit intimated to the Court that the plaintiff would bring a separate suit thereafter. With reference to the stipulation which was chosen as the subject of relief claimed in the previous suit, the Subordinate Judge held in his judgment that that particular stipulation did not exist in the contract. Therefore he dismissed that part of the claim. But he gave the plaintiff a declaration that the contract between the parties did exist and that the plaintiff's remedy was by way of damages.
3. Now, in the present suit based upon the same agreement, the plaintiff asks for relief by way of damages in respect of the stipulations other than those which were included, in the previous suit. Section 43 of the Civil Procedure Code provides that 'every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action'. That being the law, the plaintiff ought to have claimed damages in respect of the stipulations which are now in question. The plaintiff having omitted to make the present claim a part of the claim in the previous suit, his present suit is barred under Section 43. The decision relied upon by the learned Subordinate Judge in Piari v. Khiali Ram, 3 A. 857. has no relevancy whatever to the pleadings and facts in the present case. It is undoubtedly the law that where a suit having been brought in which the plaintiff set up a certain right and asked for relief on its strength, the Court holds that he is not entitled to the right and dismisses the suit on the ground that the right has not come into existence, the plaintiff can bring another suit for that right and relief when the right has accrued. Section 43 is no bar to such a suit. But that is not the present case. Here when the previous suit was brought the plaintiffs right to sue for damages for a breach of the contract now sued on had come into existence; he sued for that breach but his claim was confined to damages in respect of one of the stipulations in the contract. He omitted his claim in respect of the rest. The suit is, therefore, clearly barred under the first paragraph of Section 43 of the Civil Procedure Code. That being the conclusion we have arrived at on the preliminary point, it is unnecessary to enter into the merits of the case.
4. It has been urged before us that the plaintiff had in the plaint in the previous suit asked for leave to bring the present suit, and that the Subordinate Judge gave leave in his judgment. But the question of leave would have been material if the omission in the previous suit had related to any of the remedies to which the plaintiff was entitled and the penultimate paragraph of Section 43 had applied. But here the question is not one of any remedy but it is of a claim arising out of the breach of contract averred (both in the plaint in the previous suit and in the plaint in the present suit) as constituting the plaintiff's cause of action.
5. We must for these reasons reverse the decree of the lower Court and dismiss the suit with costs throughout on the respondent.
6. The appeal having been allowed we must now direct that the attachment on the property of the appellant in Bombay be raised and that the Sheriff do return to the appellant the Promissory Notes of the nominal value of Rs. 55.000 duly endorsed, and the respondent should pay to the appellant the costs incidental to the execution proceedings including the poundage paid to the Sheriff.