Kanhaiya Lal, J.
1. This appeal arises out of a suit for arrears of out for 1326 to 1328 F.A. previous suit was brought for arrears of rent for the same period against the present defendants. One of the defendants, Tirbhuwan Singh, attended on the date fixed for its hearing but he filed no defence and was not examined the plaintiffs and the other defendants were absent. The suit was therefore dismissed for default.
2. The sole question for consideration in this case is whether the present suit is maintainable in respect of the same cause of action under Order IX, Rule 9 of the Code of Civil Procedure. The Courts below have dismissed the claim, holding that the plaintiff was precluded from bringing a fresh suit in respect of the same cause of action, because one of the contesting defendants had attended, when the suit was dismissed for default. Order IX, Rule 3 lays down that where neither party appears, when a suit is called on for hearing, the Court may make an order that she suit be dismissed. But such a dismissal does not preclude the plaintiff from bringing a fresh suit for the same relief subject to the law of limitation against the same defendant. So far as the defendants, Mukundi Singh and Dip Narain Singh, were concerned, it may wall be said that neither party appeared when the suit was called on for hearing; and as against them the dismissal was one for default of both the parties. As regards Tirbhuwan Singh, the Court ought to have either taken his defence or asked him whether he admitted the claim or denied it. The rent claimed was fixed in a previous proceeding between the parties under Section 36 of the Agra Tenancy Act (U.P. Act II of 1901). If Tirbhuwan Singh admitted his liability, it was open to the Court under order IX, Rule 8, C.P.C., to have decreed the claim as against him in accordance with that admission. If he denied it, the suit was liable to be dismissed against him for default with the consequence mentioned in Order IX, Rule 9 of the Code of Civil Procedure. The law contemplates a partial or a total dismissal of a suit for the default of the plaintiff under Rule 8 and in either case it precludes the plaintiff from bringing a fresh suit in respect of the same cause of action. But as pointed out in Bukharam v. Ramji (1914) 10 N.L.R. 39, a fresh suit in respect of the same cause of action against the defendants, who were absent, is not barred.
3. The rent claimed was due in respect of the joint tenancy and could have been recovered under Section 43 of the Indian Contract Act (IX of 1872) from any one or more of the joint promissors. As laid down in Muhammad Askari v. Radhe Ram Singh (1900) 22 All. 307, the effect of Section 43 is to exclude the right of a joint contractor to claim to be sued along with his contractors and a judgment, obtained against some only of the joint contractors and remaining unsatisfied, is no bar to a second suit on the contract against the other joint contractors. In Abdul Aziz v. Basdeo Singh (1912) 34 All. 604 it was similarly held that the liability of the joint holders of a fixed rate tenancy for the payment of rent was joint and several; and the failure of a plaintiff in a suit for rant against several fixed rate tenants jointly to bring upon the record representatives of a deceased tenant was no bar to the continuance of the suit against the remaining defendants. In Joy Gobind Laha v. Monmoth Nath Banerji (1906) 33 Cal. 580 and Mool Chand v. P. Alwar Chetty (1916) 30 Mad. 548 a similar view was taken. In fact it was held in the latter case that a release by the decree-holder of some joint debtors from a liability under the decree did not operate as a release of the other judgment-debtors from their liability.
4. The plaintiff is, therefore, entitled to recover the whole rent from the remaining defendants, Makundi Singh and Dip Narain Singh, each of whom was jointly and severally liable for the whole arrears claimed as much as the defendant Tirbhuwan Singh, against whom the claim was somehow or other dismissed for default. This appeal must therefore be allowed and the claim of the plaintiff will stand decreed with costs here and hitherto against the defendants, Makundi Singh and Dip Narain Singh, who will bear their own costs throughout. The defendant Tirbhuwan Singh against whom the claim stands dismissed, will get his separate costs, if any from the plaintiff-appellant in all the Courts.