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Jaldu Paidayya Vs. Jaldu Manikyala Rao - Court Judgment

LegalCrystal Citation
SubjectCivil;Direct Taxation
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 1085 of 1953
Judge
Reported inAIR1959AP404
ActsCode of Civil Procedure (CPC) , 1908 - Order 2, Rule 2
AppellantJaldu Paidayya
RespondentJaldu Manikyala Rao
Appellant AdvocateN. Rajeswara Rao and ;M.S.R. Sastri, Advs.
Respondent AdvocateD. Narasa Raju, Adv. General, ;Y. Suryanarayana and ;C. Appa Rao, Advs.
DispositionAppeal dismissed
Excerpt:
.....and later claim reimbursement - plaintiff paid taxes on behalf of defendant for three successive years - claimed reimbursement from defendant - on failure of defendant to reimburse suit filed - suit filed in respect of taxes for two years only and not three years - another suit filed in respect of tax for third year - contention of defendant that second suit barred under order 2 rule 2 - court opined that if plaintiff fails to sue for entire claim in respect of single cause of action his second suit in respect of claim omitted cannot be maintained - relief claimed in second suit should have been included in first suit as cause of action was common - held, second suit barred under order 2 rule 2. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee..........of o. s. no. 293 of 1949, and inasmuch as the plaintiff had omitted to include the present suit claim in the previous suit, the present suit was barred under order 2, rule 2, civil p. c. 7. the court below has upheld the plea. therefore the only question for decision in this appeal is whether the lower court was right in holding that the present suit was barred by order 2, rule 2, c. p. c. the main contention of the learned advocate for the appellant is that the suit claim was in respect of a distinct cause of action and the omis- sion to include the claim in the earlier suit, does not bar the present suit. he argues that the cause of action for each assessment year arose only on assessment being made for that particular year and on the amount being paid by the plaintiff. there.....
Judgment:

Basi Reddi J.

1. In the suit out of which this appeal arises, the appellant, who was the plaintiff, sued for the recovery of Rs. 10,584-2-3, being the amount with interest paid by him towards the income-tax which was payable by the defendant, who is the respondent in this appeal. The learned Subordinate Judge, Masulipatam, dismissed the suit (O. S. No. 36 of 1951) on the ground that it was barred by Order 2, Rule 2, Civil Procedure Code.

2. The material facts are not in controversy and are as follows:

The plaintiff is the elder brother of the defendant and they were carrying on several businesses jointly as partners. In 1942 differences arose between the brothers with regard to the joint businesses and the plaintiff instituted a suit (O. S. No. 717 of 1942) in the District Munsif's Court, for the dissolution of the partnership and for accounts. The plaintiff and the defendant entered into a compromise in that suit and a compromise decree was passed on 16-7-1945.

In accordance with the said compromise, the de-fendant was given the several businesses and properties as per Ex. P. 14 which was attached to the decree in that suit and in lieu thereof the plain-tiff was given a sum of Rs. 67,000/-. As per the terms of the compromise the plaintiff gave up all his rights in all the businesses enumerated in Ex. P-14 and in respect of those businesses, the defendant undertook to pay all the outstanding arrears of taxes and future taxes such as income-tax, profession-tax, Municipal-tax etc.

It was also stipulated that if for any reason, the defendant failed to pay those taxes and the plaintiff had to pay them, the latter was entitled to be reimbursed by the defendant with interest and incidental expenses.

3. With regard to the said businesses, the income-tax authorities made assessments for the years 1943-44; 1944-45 and 1945-46. The defendant having failed to pay those taxes in spite of the demands made by the plaintiff, the latter had to pay the amounts. For the year 1943-44, the plaintiff paid Rs. 8774-12-0 to the income-tax authorities in three instalments as follows: Rs. 7330-15-0 on 5-4-1948, Rs. 200/- on 29-4-1948 and Rs. 1443-13-0 on 29-4-1948; and in respect of the income-tax assessed for the two subsequent years i. e., for 1944-45 and 1945-46, and plaintiff paid the amounts of Rs. 225-0-0 and Rs. 740-15-0 on 13-8-1946 and 14-1-1947 respectively.

4. On 13-8-1949, the plaintiff filed a suit O. S. No. 293 of 1949 in the District Munsif's Court Masulipatam, in respect of the income-tax paid by him for the years 1944-45 and 1945-46. It will be noted that although by that date, the plaintiff had paid the tax for the year 1943-44, he did not include the claim in that suit.

5. The present suit O. S. No. 36 of 1951, for the recovery of the amount paid by the plaintiff towards income-tax for the year 1943-44 with interest, was filed on 18-4-1951.

6. The suit was contested on the main ground that as the payment in question was admittedly made before the institution of O. S. No. 293 of 1949, and inasmuch as the plaintiff had omitted to include the present suit claim in the previous suit, the present suit was barred under Order 2, Rule 2, Civil P. C.

7. The Court below has upheld the plea. Therefore the only question for decision in this appeal is whether the lower court was right in holding that the present suit was barred by Order 2, Rule 2, C. P. C. The main contention of the learned advocate for the appellant is that the suit claim was in respect of a distinct cause of action and the omis- sion to include the claim in the earlier suit, does not bar the present suit.

He argues that the cause of action for each assessment year arose only on assessment being made for that particular year and on the amount being paid by the plaintiff. There were thus three independent causes of action and O. S. No. 293 of 1949 was filed for the assessments of 1944-45 and 1945-48 and the present Suit for the assessment for the year 1943-44, and therefore Order 2, Rule 2, C. P. C., does not bar the present action.

8. Order 2, Rule 2, C. P. C., is in the following terms:

'(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 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.

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 190? 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'.

The object of the above rule is to avoid splitting up of claims and to prevent multiplicity of suits. Rule 2 enacts that if the plaintiff tails to sue for the whole of the claim which he is entitled to make in respect of a cause of action in the first suit, then he is precluded from suing in a second suit in respect of the portion so omitted. Rule 2 is itself an artificial rule and the Explanation further extends the scope of the rule by enacting that successive claims arising under the same obligation, shall be deemed to constitute a single cause of action.

The Explanation is not intended to be an illustration of the provisions of the rule, hut is itself a substantive provision making, what would otherwise be two independent causes of action, one cause of action for the purposes of the Rule. In Payan Reena Saminathan v. Pana Lana Palaniappa, 41 Ind App 142 (PC), the Judicial Committee of the Privy Council explained the object and meaning of Section 34 of the Ceylon Civil Procedure Code, which Is in the same terms as Order 2, Rule 2 of our Code:

'It (the section) 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' opinion, 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), nne cause of action for the purposes of the section.' (It may be mentioned that the final paragraph of Section 34 of the Ceylon Code, corresponds to the Explanation to Rule 2 of Order 2 of our Civil Procedure Code, but with this difference viz., that the words 'and successive claims arising under the same obligation' are not to be found in Section 34 of the Ceylon Code).

9. It may also he noticed that the words 'and successive claims arising under the same obligation,' which were not present in S. 43 of the Code of 1882, which correspond to Order 2, Rule 2 of the present Code, have been added into the Explanation and the Illustration to the rule has been expanded so as to cover the case of rent tine for a period subsequent to the one for which the suit is brought. So that what would otherwise be distinct causes of action, are regarded as one cause of action by reason of the deeming clause contained in the Exlana-tion, and in a case like that, the provisions of Rule 2 of Order 2, C. P. C. are attracted and successive suits in respect of claims arising under the same obligation are barred.

10. Therefore the crucial question for consideration in this appeal is not, as is contended for the appellant, whether the amounts paid by the plaintiff in respect of the three successive assessment years, constitute three separate and distinct causes of action, but whether having regard to the Explanation to Rule 2 of Order 2 C. P. C. the claims arose under the same obligation and as such must be deemed to constitute but one cause of action.

11. The learned Advocate General, appearing for the respondent, readily concedes that the three payments made by the plaintiff for the three successive years, would be three independent causes of action but for the Explanation which makes all the three a single cause of action since they arose under the same obligation viz., the compromise entered into between the parties on 16-7-1945 and in terms of which the suit in O. S. No. 717 of 1942 was decreed.

12. There is considerable force in this contention. That all the claims sprang from a common source cannot admit of any doubt. The basis of the liability of the defendant to reimburse the plaintiff is traceable to the compromise. Although successive claims may have arisen on payment of income-tax assessed year after year, the obligation is the same and the source of liability is common, and in our opinion the Explanation covers this case. The illustration to the Rule further clarifies the position. In the Illustration, the obligation arises under the contract of tenancy, and that is the source of liability.

Every year's rent gives rise to an independent cause of action, but by reason of the fact that claims for rents for all the years arise under the same obligation viz. the contract of tenancy, all the claims on a given date are regarded as a single cause of action and should he included in one suit, and failure to d.o so, would attract tlie bar erected by the Rule. In the present case, the liability of the defendant to pav the taxes already due and to become due, arose only under the terms of the compromise in O. S. No. 717 of 1942. Similarly the right to reimbursement claimed by the plaintiff also arose under that compromise. Consequently the successive claims of the plaintiff in respect of the income-tax paid by him, are referable only to the compromise and to the obligation undertaken by the defendant as per that compromise.

13. That the plaintiff himself regarded the compromise as the source of the defendant's liability, is borne out not only by the allegations in the plaint in the present suit, but also by the allegation in the plaint filed in O. S. No. 293 of 1949. Para 6 of that plaint clearly alleged that the income-tax paid by the plaintiff had to be paid by the defendant as per the 'rajinama' decree and since the defendant had not paid the amounts, the plaintiff was obliged to pay them, and he was entitled to get back those amounts with interest as per the 'rajinama' decree. The same averment was repeated in the notice issued by the plaintiff to the defendant on 28-3-1951 prior to the institution of the present suit.

In the plaint in the present suit, reference is made to the compromise that was entered into between the plaintiff and the defendant in O. S. No. 717 of 19-12 and in para 4 it is alleged that as per the terms of that compromise the defendant himself should pay all the outstanding arrears of taxes and the future taxes, and that in case the defendant fails to pay them, and if the plaintiff pays any of those taxes, he should recover all such amounts from the defendant. In para 6, it is further alleged that having got a decree passed in terms of the compromise, the defendant failed to pay it on demand to the income-tax authorities for the year 1943-44, and the plaintiff had to pay it on demand to the income-tax authorities:

14. It is therefore evident that the source of the defendant's obligation as well as the source of the plaintiffs claim is the compromise entered into between them in O. S. No. 717 of 1942; and as the amount claimed in the present suit, had been paid by the plaintiff even before the institution of O. S. No. 293 of 1949, and as he had omitted to claim it in that suit, he is precluded from claiming it in the present suit by reason of the combined operation of the provisions of the Explanation and of Rule 2 of Order 2, C. P. C.

15. Learned Advocate for the appellant has referred us to a decision of Viswanatha Sastri, J. in Seetharama Sastri v. Vijayawada Municipality, 1955-1 Andh WR 885: (AIR 1957 Andh Pra 896). There a suit was filed by the Municipality against one Seetharama Sastri for recovery of a certain amount alleged to be due from him as property tax for the years 1946-47, 1947-48 and 1948-49. The property tax payable by Seetharama Sastri was successively enhanced by the Municipality for each of the said years in spite of the objection by Seethavama Sastri.

The defence of Seetharama Sastri was that the enhancement of tax was illegal and that he was entitled to a decree for a certain amount after setting off the amount paid by him by way of property tax to the Municipality for the aforesaid three years. The court held that the enhanced levy was illegal and gave a decree in favour of Seetharama Sastri for the amount claimed by him.

Seetharama Sastri thereafter brought another suit for recovery of certain other amount representing the principal and interest of the enhanced tax realised from him by the Municipality for the year 1945-46. The defence of the Municipality was that the suit was barred by Order 2, Rule 2, C. P. C. The court of the District Munsif upheld the plea and dismissed the suit on the ground that Seetharama Sastri should have included the amount now sued for in the claim for set off which he had put for-ward in the prior suit.

16. In revision, Viswanatha Sastri, J., held that the lower court had erred in holding that the suit was barred by Order 2, Rule 2, and observed:

'Here the tax had to be assessed and demanded separately for each half-year by the Municipality and was also paid by the assessee under protest in respect of each half-year. It is not as if the tax for a half-year, if not paid, becomes merged in the tax liability for the succeeding half-years or that there is a continuous running account between the Municipality and the petitioner. The assessment for each half-year is a separate proceeding and an illegal levy in respect of each of the half years gives rise to a separate cause of action to the plaintiff for recovery of the amount so levied. On each occasion on which the Municipality exacted payment of more than what was lawfully due to it, it was committing an actionable wrong in respect of which the plaintiff had a distinct cause of action.'

It will be seen that in that case there was no oneness of obligation which was a common source of liability, but on the contrary, every illegal levy Rave rise to a separate cause of action and an independent claim. The question of the applicability of the Explanation to Order 2, Rule 2, did not call for consideration in that case.

17. A case more in point is the one cited by the learned Advocate General in Subba Naicker v. Kathiresa Thavar, : AIR1954Mad158 , where on facts similar to those in the present case, the Explanation to Order 2, Rule 2, arose for consideration. The facts of that case were as follows:

18. Under the terms of a compromise decree the tenants undertook to pay the landholder cist at a particular rate in addition to any new cesses which might be levied by the Government. The landholder filed a suit for recovery of rent and cesses for faslis 1348 to 1350. The plaint was presented in a wrong court and it was returned for presentation to the proper court ; and by the time the plaint was presented to the proper Court, the cesses due for faslis 1351 and 1352 had accrued due. The plaintiff, however, when presenting the plaint in the proper Court, did not amend the plaint so as to include his claim in respect of faslis 1351 and 1352.

Subsequently a fresh suit was brought by the plaintiff for those faslis. The defendant contended that the claim for faslis 1351 and 1352 was barred under Order 2, Rule 2, C. P. C. It was contended for the plaintiff that since the amount payable for each year was not a fixed amount and was likely to vary, the cause of action in respect of all the years was not the same within the meaning of Order 2, Rule 2, C. P. C.

Chandra Reddy J. (as he then was), repelled that contention, and after referring to the Explanation to Order 2, Rule 2 C. P. C., held that the claims for rent for successive years arose under the same obligation and attracted the provisions of the Explanation, and the fact that there was likely to be a variation in the sums to be claimed by the landholder from the tenants in successive years, made no difference so far as the applicability of Order 2, Rule 2, C. P. C, was concerned.

19. We are in respectful agreement with the view of the learned Judge. It follows that the plaintiff in this case is barred by reason of Order 2, Rule 2, C. P. C., from maintaining the present suit having regard to O. S. No. 293 of 1949, in which he omitted to claim the amount of income tax he had paid for the year 1943-44.

20. It is to be regretted that as a result of that omission, he stands to lose a substantial amount and the result is all the more regrettable as between two brothers; but us observed by Lord Buckmaster in connection with the application of the rule in Kishan Narain v. Pala Mal, 50 Ind App 115 at p. 120: (AIR 1923 PC 412 at p. 414):

'There were, no doubt, good grounds of policythat caused the introduction into the Code of CivilProcedure of the provisions which, in the result ofthis case, will involve the appellant in some pecuniary loss, and it is the duty of the courts to interpret and carry into effect those rules uninfluencedby the consideration of the provisions.'

In the result, the appeal fails but, in the circumstances of the case, each party will bear his owncosts.


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