1. This is a defendants application for the revision of an older passed by the Judge of the Small Cause Court of Agra decreeing the plaintiff's suit. The plaintiff's suit was based on account books, and according to the applicant the plaintiff had sued previously on a running account from 5th November 1930 to 24th May 1931 and obtained a decree, and the applicant afterwards brought a counter suit against him and also obtained a decree. The grounds of the present application are that the present suit is based on an account in which the items arc dated from 29th March 1930 to 30lh September 1930, and that when the plaintiff brought his previous suit he was bound by the provisions of Order 2, Rule 2, to include these items so that the present suit was barred by Clause (2), Rule 2.
2. This argument was apparently brought forward in the trial Court, and the finding of the Court was that the present suit is based on a different account No details are given to show how the Court arrived at this conclusion, but it is pointed out that the plaintiff in his statement said that he had two different accounts, one a 'wholesale' account and the other a 'retail' account though both appear to have been of items of a similar description and both accounts are entered in the same account book. In these circumstances it was for the defendant to prove that the plaintiff's cause of action in regard to the items in the second suit was the same as Ms cause of action in the first suit. I have been referred to the decision in the case of Kedar Nath v. Dinabandhu Saha (1915) 42 Cal 1043 in which it was held by a Bench of the Court that where the dealings between two parties give rise to a continuous account the whole forms one cause of action. If no continuous account were kept each item would no doubt form a separate cause of action. But apparently the decision of the Calcutta High Court amounts to this, that where a running account of such items is kept it will be presumed by the Court that the contract between the parties is that the accounts should be kept in that way, that payment should be made on account, and that consequently the cause of action in a suit will be the account itself and not the separate atoms of which it is composed. A somewhat different view was taken by a Bench of the Rangoon High Court in the case of K.E.A.K Ahmad Sahab and Co. v. M.K. Pakir Mahomed Rawther A.I.R. 1924 Rang, 145, in which it was decided that prima facie each order and delivery of goods is a separate transaction and a separate cause of action unless they are successive claims arising under the same obligation within the explanation, at the end of Rule 2, Order 2. The question is really dependent on the contract between the parties, and it is remarked:
I do not dispute the contention that there may be cases where from the course of dealing and previous settlements between the parties there may be evidence of implied contract that all goods supplied in a particular month or in a particular quarter or even in an entire account should be treated as a single cause of action, but in my opinion it would require very clear evidence to justify a Court in dismissing a suit on such ground.
3. In the present case however even if we assume that the cause of action was the running account and not the separate items contained therein, the finding of fact by the Court is that there was a separate account for these retail items, i.e., it formed a separate cause of action from that in the earlier suit, and consequently Order 2, Rule 2 cannot operate as a bar. The result is that the application fails and is dismissed with costs.