1. This is a defendant's appeal. In 1919, the plaintiff was serving a term of rigorous imprisonment in jail and he appointed the defendant as his mukhtar-i-am. The defendant acted accordingly, and collected moneys belonging to the plaintiff and also disbursed moneys for him. In 1926 the plaintiff was released from, jail and in August of that year the plaintiff dismissed the defendant from his agency, after having demanded, and failed to obtain, an account of the moneys due to him. In March 1927, the plaintiff sued the defendant for a specific sum of Rs. 587 and interest, as money had and received to the plaintiff's use. It was held in that action, on authority, that the plaintiff could not sue a general agent for one specific sum of money without asking for an account, and the plaintiff's suit was dismissed. The plaintiff then brought this suit for accounts and payment of the amount found due to him. This suit was decreed in favour of the plaintiff by both the lower Courts. The defendant now comes on second appeal. The only point taken by counsel for the appellant in this Court is that Order 2, Rule 2(3) applies and that, because of this order, the plaintiff's suit is not maintainable.
2. Order 2, Rule 2(3) enacts that:
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.
3. It has been strenuously contended on behalf of the appellant that the action in 1927 was based upon the same cause of action as the present action and that the plaintiff could have claimed the relief he now asks for in the previous action. Therefore it is contended he is now barred from claiming that relief in this action. The whole question is whether the two actions were based upon the same cause of action. In my opinion, they clearly were not. 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. It is true that in the previous suit the plaintiff set out that the defendant was his general agent, but it was quite an unnecessary allegation and was irrelevant to the issues that were then to be decided. Again, the previous suit was dismissed on the ground that on the facts stated by the plaintiff no cause of action was shown because, where the defendant was a general agent with power to disburse many as well as to receive it, a single item of money would not be demanded from Kim without an account. It having been therefore held that the first case disclosed no cause of action, it cannot possibly be said that this case is based upon the same cause of action. There cannot be any resemblance between a 'cause of action' and 'no cause of action.'
4. I am confirmed in my opinion as to this matter by two decisions of this High Court. One, in the case of Mohammad Umar Khan v. Ummatul Rahim Bibi A.I.R. 1923 All. 311 and the other in the case of Manohar Das v. Babu Seetal Prasad 23 W.R. 418. In the former case the learned Judge said:
The plaintiff's cause of action is defined as consisting of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court, and that a test which is valuable in considering whether the causes of action are identical is whether the evidence which would suffice to enable the plaintiff to obtain a decree in both suits is the same.
5. It is clear 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 suits is not the same. As regards the latter case quoted above, it is laid down there that:
an action against a general agent, simply on the allegation that he has received money on account of the principal without remitting it to the latter, is not sustainable because the facts stated do not constitute a cause of action, it being alleged that there are grounds for believing that the money so received has not been disbursed on the plaintiff's account, but misappropriated by the agent.
6. This was the allegation in the first case, and on the authority of this case it is clear that the first case did not disclose a cause of action. It is, therefore, clear that the causes of action in both these cases cannot be the same and therefore, Order 2, Rule 2(3) does not apply. The appeal is dismissed with costs.