Bind Basni Prasad, J.
1. This is a petition in revision under Section 6B, Court-fees Act, 1870, as amended in its application to this Province. The plaintiff brought a suit alleging that the defendant was the tenant of six shops in the town of Bareilly and that he was in arrears of rent for six years. The reliefs-claimed by him were as follows:
(a) A decree for Rs. 1010-4-6 for arrears of rent may be awarded.
(b) A decree for the ejectment of the defendant from the disputed shops and for possession of the plaintiff over the same may be passed.
(c) Pendente lite and future mesne profits at the rate of Rs. 28 per shop may be granted.
2. Inter alia, the defendant contended that (the court-fee paid was insufficient. The Inspector of Stamps also objected that the court-fee paid was insufficient. His contention was that the two reliefs for arrears of rent and for ejectment should have been separately valued and the court-fees should have been separately paid in respect of them. Reliance was placed upon Section 17, Court-fees Act, and upon Lala Sriram v. Jagat Narain 93 I.C. 291 (Oudh); Parumal Aitmal v. Motumal 17 I.C. 44 and Shahazadi Begam v. Mahbub Ali Shah and Ors. A.I.R. (7) 1920 ALL. 40.
3. The learned Civil Judge did not agree with the Stamp Inspector's report and held that the court-fee paid on the plaint was sufficient. The plaintiff had paid the court-fee on the aggregate value of the two reliefs.
4. Learned Junior Standing Counsel has relied also upon the Full Bench case of Chedi Lal and Anr. v. Kirath Chand and Ors. reported in 2 ALL. 682. In Chedi Lal and Anr. v. Kirath Ghand 2 ALL. 682 (F.B.), the suit was for possession and rent and on an interpretation of Section 17, Court-fees Act, as it then stood, it was held that the plaint and the memorandum of appeal were chargeable with the aggregate amount of fees to which the plaints or memoranda of appeal in separate suits for the different claims would have been liable. The language of Section 17 is a little different now. Formerly Section 17 provided as follows:
Where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the , plaints or memoranda of appeal in suits embracing separately each of such subjects would be liable under this Act.
Section 17(1), as amended in its application to this Province, now provides as follows:
In any suit in which two or more separate and distinct causes of action are joined, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees with which the plaints or memoranda of appeal would be chargeable under this Act if separate suits were instituted in respect of each such cause of action.
In Chedi Lal and Anr. v. Kirath Chand and Ors. 2 ALL. 682 (F.B.) Oldfield J. observed at page 686:
Here the claim for possession of the house and the claim for rent, which in this suit is by way of damages, arise out of different causes of action and might have been made subjects of different suits.
It would appear, therefore, that the word 'subject' was construed as synonymous with the words 'cause of action'.
5. On a proper interpretation of Section 17, as it stands at present, I am of opinion that no hard and fast rule can be laid down that in every, case in which a tenant is sued for ejectment and rent the court-fee on the two reliefs should be paid separately. It all depends upon the nature: of the transaction. If, for example, there is a contract that on the tenant making any default, in the payment of rent he would be liable to, ejectment, a suit brought on the basis of such a contract for ejectment and arrears of rent would arise from the same cause of action and the court-fee would be payable on the sum total of the value of the two reliefs. If, however, there is no such contract, then the two reliefs should be valued separately and the court-fee paid on the aggregate amount as if two separate suits, had been brought. The crucial test is whether or] not the subsequent suit for ejectment would be barred under Order 2, Rule 2, Civil P.C. In this connection, I may refer to the Full Bench case of Nandan Singh v. Ganga Prasad 11 A.L.J.E. 786. In that case on a partition of certain property the share which fell to the plaintiff's lot remained in possession of the defendant. The plaintiff sued the defendant only for ejectment in the revenue Court. The defendant pleaded that he was an ex-proprietary tenant, but the Court held him to be a non-occupancy tenant and ejected him. The plaintiff then brought another suit for rent for the use and occupation of his land by the defendant during the period prior to the ejectment. It was held that the defendant, being in occupation of the land without permission from the plaintiff, was liable to pay rent therefor, notwithstanding the fact that the defendant was not in possession at the time when the suit was brought. Richards C.J. dealt with the question of Order 2, Rule 2, Civil P.C., and held that the second suit for rent was not barred by that provision. On the other hand, we have the case of Shahazadi Begam v. Mahbub Ali Shah and Ors. A.I.R. (7) 1920 ALL. 40 in which the plaintiff sued for a declaration of her right to receive certain annuity and also for the arrears of the same. The value of the two reliefs were added together and the court-fee was paid on the aggregate amount. The provisions of Section 17, Court-fees Act, were not applied in that case. We have also Mewa Kuar v. Banarsi Prasad 17 ALL. 533. In that case a plaintiff sued for possession of immovable property upon a forfeiture and for rent in respect of the said property up to the date of the alleged forfeiture. Having obtained a decree, he subsequently brought a separate suit for mesne profits including the period from the date of the forfeiture to the date of the institution of the former suit. It was held that the claim for mesne profits for the period above-mentioned was barred by Section 43 of the old Civil P.C., which corresponded to Order 2, Rule 2 of the present Code. The rulings-Lata Sriram v. Jagat Narain 93 I.C. 291 (Oudh) and Parumal v. Motumal 17 I.C. 44 - relied upon by the Stamp Inspector are hardly applicable to the present case as the facts in those cases were quite different. Apart from the above authorities, learned Junior Standing Counsel referred also to Sris Chandra Nandy of Kasimbazar v. Joyramdanga Coal Concern Ltd., Calcutta : AIR1942Cal40 . It was held in that case that Order 2, Rules 2 and 4, Civil P.C., clearly indicate that a claim for mesne profits would not be barred under Order 2, Rule 2, if such a claim was not included in a previous suit for possession and that the claims for possession and mesne profits are not based on the same cause of action.
6. A perusal of the plaint in the present case shows that the reliefs for ejectment and for arrears of rent do not arise out of the same cause of action. The rent accrued from month to month as it fell due. The claim for ejectment arose when the defendant denied the plaintiff's title and when the plaintiff served a notice upon the defendant. It is, therefore, not possible to say that the same set of facts constitute the cause of action for two reliefs for ejectment and arrears of rent. I hold, therefore, that the Stamp Inspector's report is correct and that there is a deficiency of court-fee to the extent of Rs. 118-8-0.
7. The petition in revision is allowed, the order of the lower Court is set aside and the Stamp Inspector's report as regards deficiency in court-fees is accepted. The plaintiff shall make good the deficiency in court-fees. Parties shall bear their costs.