1. This is a defendants' second appeal. It appears that the appellants ara the proprietors of a firm of military contractors. They gave a sub-contract to the plaintiff-respondent for the supply of leather goods and the arrangement between the parties was that the plaintiff should submit his bills to the defendants and the latter should realize the money from the military department and should thereafter pay it to the plaintiff, after deducting a commission of 5 per cent. On 1st November 1934 the plaintiff-respondent instituted a suit (Suit No. 725 of 1934) for recovery of a specific sum of money, amounting to Rs. 1066-10-0, which admittedly had reference to specific bills submitted by the plaintiff to the defendants. The suit was originally dismissed, but was decreed in first appeal, and the decree of the appellate Court was affirmed by this Court in second appeal on 28th March 1938.
2. Meanwhile on 30fch August 1936 the plaintiff filed the suit out of which this second appeal has arisen for rendition of accounts in respect to the period from March 1928 to November 1933. This suit was stayed pending the decision of this Court in connexion with the second appeal which had been preferred in respect to Suit No. 725 of 1934. When that appeal was decided and the suit out of which the present appeal arises was taken up again by the trial Court, an application was made to amend the written statement by pleading the bar of Order 2, Rule 2, Civil P.C. That application was disallowed and a preliminary decree was ultimately passed. There was an appeal, and the learned Judge of the appellate Court has substantially affirmed the decree of the trial Court. The learned Judge allowed counsel for the defendants-appellants to plead the bar of Order 2, Rule 2, Civil P.C., and also the bar of res judicata under Section 11, Civil P.C., but both these pleas have been repelled by the lower appellate Court, and the point taken before me in this appeal is that the learned Judge has erred in holding that the suit was not barred either by the provisions of Order 2, Rule 2, Civil P.C., or under Section 11, Civil P.C. Rule 2(4) of Order 2 provides:
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.
3. Rule 2(3) provides:
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.
4. In considering whether the suit out of which this appeal arises was barred by the provisions of Order 2, Rule 2, Civil P.C., the criterion is whether or not this claim and the claim which was made in Suit No. 725 of 1934 arose out of the same cause of action. In Shib Singh v. Jograj Singh : AIR1930All116 , the plaintiff sued the defendant for a specific sum of money as (money had and received to the plaintiff's use. The suit was dismissed as legally incompetent and the plaintiff then instituted a suit for accounts and for payment of whatever money might be found due to him. It was held that Order 2, Rule 2, Civil P.C., was no bar to the second suit. The learned Judge who decided that case observed:
The first action was an action for a sum of money which the defendant had received to the use of the plaintiff. In order to prove his claim in that case the plaintiff merely would have to prove that the defendant had received a specific sum of money on the plaintiff's behalf. The present action is for accounts and the plaintiff would have to prove that the defendant was his general agent.
5. Further on the learned Judge says:
It is dear from what I have said above that it would be unnecessary to prove the same facts in both these cases and it is equally clear that the evidence which would suffice to enable the plaintiff to obtain a decree in both the suits is not the same.
6. The learned Judge then went on to find that the causes of action in the two suits were not the same and that Order 2, Rule 2(3), Civil P.C., did not apply. In Mangal Sain v. Labhu Mal ('33) 20 A.I.R. 1933 Lah. 542 the plaintiff instituted a suit against a person whom he alleged to be his gumashta or agent on the ground that the latter had misappropriated some ornaments, a specific sum of money and the price or value of certain other articles. That suit was dismissed and thereafter he instituted a suit against the same defendant for rendition of accounts. It was held by a Bench of the Lahore High Court that the suit was not barred by Order 2, Rule 2, Civil P.C. The learned Judges say:
A careful perusal of the plaint in the first case indicates that the plaintiff was confining his claim to certain specific items said to have been appropriated by the respondent quite apart from his liability to render accounts as an agent.
7. In order to ascertain whether the suit is barred by the provisions of Order 2, Rule 2, Civil P.C., it is necessary to consider what facts had to be proved in the first suit and what facts have to be proved in the second suit. In suit No. 725 of 1934 what had to be proved was the fact that the defendants had received certain sums of money from the military department on behalf of the plaintiff in respect to bills which had been submitted by the latter. In the suit out of which this appeal arises what had to be proved was (1) the terms of the sub-contract and (2) the liability of the defendants-appellants to render an account. In my opinion, the cause of action in the two suits was different and therefore the provisions of Order 2, Rule 2, Civil P.C., do not operate as a bar.
8. Upon the same reasoning I am of opinion that the suit is not barred by the provisions of Section 11, Civil P.C., inasmuch as the same matter is not directly and substantially in issue in the suit out of which this appeal arises as the matter which was in issue in Suit No. 725 of 1934. For the reasons given in this judgment I dismiss this appeal with costs. Permission to appeal under the Letters Patent is refused.