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Ganeshi Lal Vs. Bansi Dhar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1933All84; 140Ind.Cas.181
AppellantGaneshi Lal
RespondentBansi Dhar and ors.
Excerpt:
- - not having asked for the ejectment of the defendant in that suit, he is clearly precluded by order 2, rule 2, civil p......of the house, he did not ask for this relief in this suit.2. in 1925, the mortgagee instituted a suit for recovery of the principal money by the sale of the house. the court of first instance decreed the suit. the lower appellate court dismissed the suit on the ground that the lease and the mortgage constituted one transaction, that the claim in the former suit was really for recovery of interest although it had been described as a claim for rent and that the cause of action for recovery of principal had also accrued at the time of the institution of suit no. 11 of 1923. it held, therefore, that the claim was barred by the rule of res judicata and also barred by order 2, rule 2. the plaintiff submitted to this decree and there was no further appeal. in 1927, the plaintiff brought a.....
Judgment:

Sen, J.

1. This is an appeal under Section 10, Letters Patent, and arises out of a suit for possession of a house No. 12 situate in Megha gali in the city of Muttra. Mt. Ram Piari, as adoptive mother and guardian of Bansidar, minor, borrowed Rs. 3,000 from Ganeshi Lai, plaintiff and mortgaged the house in dispute. Interest was stipulated at the rate of As. 12-6 per cent per mensem. This came to Rs. 23-7-0 a month. In order to secure the payment of this interest, the mortgagee leased back the house to the mortgagor under an instrument of even date, which is known as sarkhat. It was agreed that the interest was payable in the months of Kartik and Baisakh and if there was a default in payment of interest for three years consecutively, the mortgagee was entitled to evict the mortgagor. The mortgage bond contained a stipulation that the principal money was payable in five years. The rent of the house, not having been paid, a suit for arrears of rent was instituted in the Court of the Subordinate Judge of Muttra for recovery of Rs. 1,678-12-0 being the rent for the period from 9th December 1916 to 9th December 1922. This was Suit No. 11 of 1923. This suit was decreed ex parte. Although under the terms of the sarkhat, the mortgagee was entitled to sue for possession of the house, he did not ask for this relief in this suit.

2. In 1925, the mortgagee instituted a suit for recovery of the principal money by the sale of the house. The Court of first instance decreed the suit. The lower appellate Court dismissed the suit on the ground that the lease and the mortgage constituted one transaction, that the claim in the former suit was really for recovery of interest although it had been described as a claim for rent and that the cause of action for recovery of principal had also accrued at the time of the institution of Suit No. 11 of 1923. It held, therefore, that the claim was barred by the rule of res judicata and also barred by Order 2, Rule 2. The plaintiff submitted to this decree and there was no further appeal. In 1927, the plaintiff brought a suit for possession of the house by eviction of the mortgagor. He stated that the relation between the parties was that of landlord and tenant and that the cause of action had accrued on 9th December 1825, under the terms of the lease and on_ 9th April 1927, when a month's period after the giving of the notice had expired. The Court of first instance dismissed the suit on the ground that it was barred by Order 2, Rule 2. The lower appellate Court held that it was barred by the rule of res judicata and also under Order 2, Rule 2 of the Code. The judgment of the lower appellate Court has been affirmed in appeal by this Court.

3. The rule enunciated in Order 2, Rule 2, Civil P.C. is a rule of public policy which discountenances multiplicity of suits. This rule requires that a plaintiff must exhaust _ his entire claim and all his remedies in one suit founded upon the_ same cause of action. If a cause of action for a certain claim or for certain remedies accrues to the plaintiff and if he chooses to bring a suit only for part of the claim or for only some of the reliefs which were available to him, he is precluded from maintaining a second suit as regards the rest of the claim or for the other remedies arising from; the same cause of action'! In 1923, when he instituted a suit for recovery of arrears of rent under the terms of the lease, the cause of action for possession of the house by eviction of the mortgagor had undoubtedly accrued in his favour and he could not be allowed to split the claim or the reliefs piecemeal. Not having asked for the ejectment of the defendant in that suit, he is clearly precluded by Order 2, Rule 2, Civil P.C. from maintaining a fresh suit for his ejectment from the house. This is the view taken by this Court. We endorse this view and dismiss this appeal with costs.


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