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Raj Bahadur Vs. Shyam Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1915All395; 30Ind.Cas.568
AppellantRaj Bahadur
RespondentShyam Lal
Excerpt:
civil procedure code (act v of 1908), order ix, rule 9 - clause of action--suit for profits dismissed in default--second suit for profits of other years including previous profits, maintainability of--agra tenancy act (ii of 1901), section 164. - - the cause of action for the previous suit was made up of the plaintiff's title to the share and the profits thereof and the failure of the defendant to give him those profits at the end of each of the years 1313, 1314 and 1315 fastis. the plaintiff's cause of action for the present suit is made up of his title to the share and the profits thereof and failure of the defendant to give the plaintiff those profits at the end of each of the years 1316, 1317 and 1318 fastis......plaintiff under order ix, rule 8, civil procedure code. some years later the plaintiff brought the present suit against the same person for profits of his share for the years 1316, 1317 and 1318 fastis and he has obtained a decree. included in those profits are sums recovered during the years in suit in respect of the years 1313, 1314 and 1315 fastis. it is contended that the present suit is barred by order ix, rule 9, civil procedure code, so far as the plaintiff seeks to recover any portion of the rents recovered on account of the years 1313, 1314 and 1315 fastis. in the court below and here the defendant relied strongly on the fact that in the previous case the plaintiff claimed profits on the basis of the gross rental on the ground apparently that a large amount of profits had.....
Judgment:

Chamier, J.

1. The plaintiff in this case is a co-sharer in a patti of which the defendant is lambardar. The plaintiff brought a suit against the defendant for the profits of the years 1313, 1314 and 1315 fastis. That suit was dismissed for default of appearance on the part of the plaintiff under Order IX, Rule 8, Civil Procedure Code. Some years later the plaintiff brought the present suit against the same person for profits of his share for the years 1316, 1317 and 1318 fastis and he has obtained a decree. Included in those profits are sums recovered during the years in suit in respect of the years 1313, 1314 and 1315 fastis. It is contended that the present suit is barred by Order IX, Rule 9, Civil Procedure Code, so far as the plaintiff seeks to recover any portion of the rents recovered on account of the years 1313, 1314 and 1315 fastis. In the Court below and here the defendant relied strongly on the fact that in the previous case the plaintiff claimed profits on the basis of the gross rental on the ground apparently that a large amount of profits had remained uncollected owing to the negligence or misconduct of the defendant. This fact does not appear to me to affect the question which I have to decide. Order IX, Rule 9, Civil Procedure Code, provides that where a suit is dismissed under Order IX, Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. The cause of action for the previous suit was made up of the plaintiff's title to the share and the profits thereof and the failure of the defendant to give him those profits at the end of each of the years 1313, 1314 and 1315 fastis. The plaintiff's cause of action for the present suit is made up of his title to the share and the profits thereof and failure of the defendant to give the plaintiff those profits at the end of each of the years 1316, 1317 and 1318 Fastis. The causes of action for the two suits appear to me to be totally different. The contention of the defendant in the present case seems to confuse two questions, namely, the question whether the two suits are based upon the same cause of action and the question whether the plaintiff is entitled in the present suit to sue for and recover any moneys which, if his suit had not been dismissed for default, he might have recovered in the previous suit if the Court had applied to the case the provisions of Section 164, Sub-section 2 of the Tenancy Act. If as I hold, no portion of the present suit is barred by Order IX, Rule 9, Civil Procedure Code, the plaintiff is entitled to the decree which he has obtained from the lower Appellate Court I, therefore, dismiss this appeal with costs.


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