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Relam Subba Naicker Avergal, (Died) and anr. Vs. Sundarabala Kathiresa thevar - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 648 of 1948
Judge
Reported inAIR1954Mad158; (1952)IIMLJ752
ActsCode of Civil Procedure (CPC) , 1908 - Order 2, Rule 2; Limitation Act, 1908 - Sections 14
AppellantRelam Subba Naicker Avergal, (Died) and anr.
RespondentSundarabala Kathiresa thevar
Appellant AdvocateThyagaraja Iyer, Adv.
Respondent AdvocateK.S. Ramabhadra Iyer, Adv.
DispositionAppeal dismissed
Cases ReferredAbdul Karim Khan v. Muhammad Jan
Excerpt:
.....civil court in order to invoke the aid of section 14, limitation act, failure to include in the plaint the claims that have arisen subsequent to the institution of the suit in the revenue court but before the representation of the same in the civil court will not debar him from recovering the rent that had accrued due upto the date of the re-presentation of the plaint. 22. it is now well settled that when a plaint is returned to be presented to proper court on the ground of want of jurisdiction it is open to the plaintiff to amend the reliefs without prejudice to the right to claim the benefit of section 14, limitation act provided there is no charge with regard to the cause of action. ramaswami',air 1943 mad 498 (g), a bench of this court decided that amendment of the plaint asking..........that basis, the cist due to the plaintiff from the respondent comes to rs. 135-3-0 per fasli. the suit claim in addition to the cist, comprises cesses which are said to have been newly levied by the government and paid by the plaintiff.2. the suit was contested by the respondent 'inter alia' on the grounds that the rates mentioned in the razinama decree included all the cesses then being levied and the plaintiff is therefore entitled to recover only the theerva of rs. 135-3-0 and the cesses specified in the compromise decree and that the claim for faslis 1351 and 1352 is barred under order 2, rule 2, c. p. c. in that the plaintiff did not include arrears of cist and cesses that accrued upto that date in o. s. no. 158 of 1943 which was filed for the recovery of rent and cesses for faslis.....
Judgment:

Chandra Reddi, J.

1. The appellant sued the respondent for recovering a sum of Rs. 872-6-6 being the arrears of Thirva and cesses due to him for faslis 1351 to 1354. The appellant is the Zamindar of Sevalapatti while the respondent is a tenant in occupation of certain holdings within the Zamin-dari. Under the terms of the compromise decree Ex. P. 1 dated 26-4-1898 in O. S. No. 11 of 1896, the tenants have to pay the landholder cist at the rate of 14 annas per sangali of punja and Rs. 2-7-0 per kottai of nanja in addition to any new cesses or taxes that might be levied fay the Government. Calculated on that basis, the cist due to the plaintiff from the respondent comes to Rs. 135-3-0 per fasli. The suit claim in addition to the cist, comprises cesses which are said to have been newly levied by the Government and paid by the plaintiff.

2. The suit was contested by the respondent 'inter alia' on the grounds that the rates mentioned in the razinama decree included all the cesses then being levied and the plaintiff is therefore entitled to recover only the theerva of Rs. 135-3-0 and the cesses specified in the compromise decree and that the claim for faslis 1351 and 1352 is barred under Order 2, Rule 2, C. P. C. in that the plaintiff did not include arrears of cist and cesses that accrued upto that date in O. S. No. 158 of 1943 which was filed for the recovery of rent and cesses for faslis 1348 to 1350.

3. The trial Court decreed the suit for the entire amount claimed holding that the plaintiff was enti'led to Local Board cess & education cess paid by him to the Government as there were decree (sic) and secondly that Order 2, Rule 2, C. P. C. was not a bar to the plaintiff's claim for cist and cesses for faslis 1351 and 1352.

4. On appeal the Subordinate Judge modified the decree by allowing the claim for faslis 1353 and 1354 only at the rates mentioned in the compromise decree. The ground of this decision was that Order 2, Rule 2, C. P. C. could be successfully proposed as defence to the claim so far as faslis 1351 and 1352 are concerned. He also held that the plaintiff could not lay claim to local boards and education cesses as they were included in the rates fixed under the Razinama. Plaintiff who is aggrieved by this Judgment of the Subordinate Judge has preferred this second appeal.

5. In support of this second appeal it is contended by the counsel for the appellant that the views of tne lower appellate Court that the rates of 14 annas per Sangali of Punja and Rs. 2-7-0 per kottai of nanja provided for in the compromise decree were inclusive of the local board and education cesses and that Order 2, Rule 2, C. P. C. could be pleaded in bar of the suit are erroneous.

6. As regards the first contention, a reference to the terms of the compromise decree leaves no doubt in my mind that the construction adopted by the Subordinate Judge is correct and that the tenant is not liable to pay any additional sum to the landholder by way of cesses. Therefore, this contention fails and that part of the judgment of the lower Court which deals with this aspect of the case should be affirmed.

7. Coming to the applicability of Order 2, Rule 2, C. P. C. to the case the facts that have given rise to this contention are these: Originally the plaintiff filed a suit R. S. No. 335 of 1942 in the Court of the Sub-Collector of Sivakasi for recovering rent and cesses due from the defendants for faslis 1348 to 1350. As the Revenue Court held that it had no jurisdiction to entertain the claim, the plaint was returned for presentation to proper Court and it was re-presented on 10-6-1943 in the Court of the District Munsif of Sattur, and numbered as O. S. No. 158 of 1943. Admittedly, by that time the liability to pay cist and cesses for faslis 1351 and 1352 had already arisen. But the rent due for these two faslis was not included in that plaint. The present suit was filed for recovering arrears of rent not only for those two faslis but for the two subsequent faslis also.

8. The counsel for the appellant seeks to get over the bar of Order 2, Rule 2, C. P. C. by contending that the provisions of Order 2, Rule 2, C. P. C. have no application to this case because in this case the amount payable in each year is not a fixed amount and is likely to vary from year to year: the tenants have to pay to the landholder any new cesses that might be levied by the Government and that these cesses vary from year to year and consequently the cause of action in respect of each year is not the same within the meaning of Order 2, Rule 2, C. P. C. The argument of Mr. Thyagaraja Aiyar, the counsel for the appellant is that education cess was being varied from year to year and the exact amount due from the tenant could not be ascertained in advance. As substantiating his contention he cited to me the decision in -- 'Venkatachalapathi Rao v. Gopalakrishnayya' : AIR1934Mad46 . In that case Kattubadi was payable to the landholder by mokhasadar on the basis of the gross produce, from year to year upon the lands within the mokhasa. It was decided that the cause of action for the subsequent suit for the recovery of Kattubadi was not the same as in the previous years.

The ground of decision of the learned Judge is contained in the following words: 'When regard is had to the fact that Kattubadi now in question is not a fixed payment in money or in kind but a payment at the rate of Rs. 2 per putti of gross produce grown from year to year upon the lands within the mokhasa, it is plain that the annual kattubadi cannot possibly be the same in successive years and can only be ascertained each year after the cultivation is over and when the crop has actually been harvested. The lands upon which the crops are grown need not be the same, the cultivators who raise the crops need not be the same and when that is to be applied to an area which is said to be about 800 or 900 acres, the utter impossibility of determining beforehand the kattubadi due for each particular year becomes apparent. It seems to me therefore that this is a case of different causes of action aris-ing from the same transaction or relation between the same parties and not suits upon the same cause of action in which the plaintiff is entitled to more or less the same relief.'

9. I do not think that the present matter can be governed by the principle enunciated in that case. The considerations that weighed with thy learned Judge in coming to that conclusion have no relevancy in this case. Here the lands cultivated and the tenants who cultivated the lands are the same.

10. I shall also presently show that the fact that there is likely to be variation in the successive claims owing to a variation in respect of the cess which is a small portion of the claim would not make any difference so far as the applicability of Order 2, Rule 2, C. P. C. is concerned. The explanation to Order 2, Rule 2, C. P. C. runs thus: 'For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.'

11. In this case, we are only concerned with the latter clause. It is clear that it is only by reason of the explanation that the claims arising in the successive years based on the same obligation are considered to be the same cause of action.

12. But for this special provision the causes of action for successive years will not be the same. No doubt, the explanation must receive strict construction since it operates as a bar of suit. But it-is the duty of Courts to give a plain and reasonable meaning to the words of an enactment.

13. It is now well-settled that claims for rent for successive years arise under the same obligation and there can be no doubt that suits for rent attract the provisions of the explanation of Order 2, Rule 2, C. P. C. The only question that I have to consider is whether the fact that there is likely to be variation in the sums to be claimed by the landholder from the tenants in the successive years by reason of new cess being levied by the Government, makes any difference. To ray mind, it appears that this does not constitute a ground of difference so far as the applicability of Order 2, Rule 2, C. P. C. is concerned.

14. The principle has been laid down in a number of cases that the fact that the reliefs to be claimed may vary from year to year would not make the causes of action different. The amounts to be claimed in successive years may vary but that is not the criterion to judge whether the cause of action is the same. The cause of action in this case is the obligation to pay rent every year and it does not cease to be the same merely because the reliefs to be claimed in successive jears may vary.

15. In -- 'Shankar Baksh v. Dayasamkar', 15 Cal 422 (PC) (B), it was laid down by the Privy Council that 'difference in the mode of relief claimed did not make any difference so far as the identity of the cause of action was concerned.' In that case, the plaintiff who asked for a relief in an earlier suit regarding the under-proprietary right by reason of a sub-settlement, claimed in the later suit superior-proprietary right. It was held by their Lordships that the later suit was barred under Section 114 of Act 8 of 1859.

16. In -- 'Md. Hafiz v. Mirza Md. Zakariya', AIR 1922 PC 23 (C), their Lordships have defined cause of action referred to in Rule 2 of Order 2, thus: 'The cause of action is the cause of action which gives occasion to and forms the foundation of the suit and if that cause enables a man to ask for a larger and wider relief than that to which he limits his claim he cannot afterwards seek to recover the balance by independent proceedings.'

17. Thus it is clear that the question whether the prior suit and the subsequent suit are based on the same cause of action cannot be determined with reference to the terms of the reliefs. Despite the fact that the reliefs are distinct, causes of action may be the same. In my judgment the variation in the reliefs claimable in the successive years cannot give rise to the plea of the non-applicability of Order 2, Rule 2, C. P. C.

18. Alternatively, it was argued by the counsel for the appellant that since the plaintiff had to present the same plaint in the civil Court in order to invoke the aid of Section 14, Limitation Act, failure to include in the plaint the claims that have arisen subsequent to the institution of the suit in the revenue Court but before the representation of the same in the civil Court will not debar him from recovering the rent that had accrued due upto the date of the re-presentation of the plaint. I think this plea cannot avail the appellants.

19. In support of his contention, Mr. Thyaga-raja Aiyar quoted a Pull Bench decision of this Court in -- 'Visweswara Sarma v. Dr. P. M. Nair', 35 Mad 567 (PB) (D), which held that when the plaint which was filed originally in the Court of small causes and re-presented subsequently on the original side of that Court is the same, the plaintiff is entitled to get credit for the court-fee paid on the plaint as originally presented. Reliance was also placed on a ruling of a single Judge of this Court in -- 'Sarabama v. Peda Veerappa' : AIR1950Mad57 , where the learned Judge following -- '35 Mad 567 (D)', laid down that in order to get credit for the court-fee paid in the Court which was found not to have jurisdiction, the same plaint should be re-presented. I do not think these two decisions have any material bearing on the question to be decided by me, as in this case we are only concerned with the question whether the plaintiff ought to have included the claim for rent that has arisen up to the date of the re-presentation of the plaint, in a civil Court.

20. Reliance was next placed on the observations of Venkataramana Rao J. in -- 'Satya-narayanamurthi v. Suryarao Bahadur', AIR 1939 Mad 724 (F), which, I will show, do not in any way touch the point for determination in this case. What happened in that case was this. Originally a suit was filed in a civil Court for recovering damages for use and occupation for the years that had fallen due up to that date. While that suit was pending another suit had to be filed for damages that had accrued subsequently. On an objection raised by the defendant that the civil Court had no jurisdiction to entertain the suite it was ultimately decided that it was not competent for the civil Court to entertain these claims with the result that the plaints in both the suits were returned for presentation to the revenue Court. In the civil Court the defendant took the objection that as either suit did not include a claim for all the faslis upto the date of the re-presentation, the plaintiff should be called upon to elect either of the two suits. It was in negativing this contention that the learned Judge observed relying on the opinion of the learned Judges in -- '35 Mad 567 (D)', that

'the plaintiff was therefore obliged to present all the plaints in the revenue Court. When he presented them he must be deemed to have claimed for all the faslis upto the date of the presentation.'

The observations must be understood with reference to the context of that case.

21. To meet the argument based on Section 14, Limitation Act, Mr. Ramabhadra Aiyar, counsel for the respondent urged that in the earlier suit when the plaintiff represented the plaint in the civil Court it was not necessary for him to call in aid Section 14, Limitation Act, as the suit was governed by the provisions of Article 131, Limitation Act. It is unnecessary for me to go into that question in the view I propose to take of this matter on the assumption that Section 14, Limitation Act had necessarily to be invoked by the plaintiff.

22. It is now well settled that when a plaint is returned to be presented to proper Court on the ground of want of jurisdiction it is open to the plaintiff to amend the reliefs without prejudice to the right to claim the benefit of Section 14, Limitation Act provided there is no charge with regard to the cause of action. In -- 'Vangannan Chettiar & Sons v. Ramaswami', AIR 1943 Mad 498 (G), a Bench of this Court decided that amendment of the plaint asking for a different relief from the one originally asked for when the plaint is returned fpr presentation to proper Court should not deprive the plaintiff of the benefit of the provisions of Section 14, Limitation Act, if the cause of action is the same and the plaintiff had acted in good faith in the institution of the suit in the Court in which it was originally filed. In that case a sub-mortgagee of three mortgages filed a suit in the Court of the District Munsif for sale of the mortgage properties to which he impleaded not only his mortgagors but the original mortgagors also. As it was found that the value of the subject matter of the suit exceeded the pecuniary jurisdiction of the District Munsif, it was returned for presentation to the Court of the Subordinate Judge. Thereupon the plaintiff amended the plaint by asking for the relief of the sale of the property covered by one of the mortgages and of the sale of the mortgage rights of his mortgagor in the other mortgages and thereby bringing the suit within the jurisdiction of the District Munsif. By that time 12 years had elapsed from the date of the mortgage in respect of which he asked for sale of the mortgaged property. The question therefore arose whether he was entitled to the operation of Section 14, Limitation Act and it was answered in the affirmative. In the opinion of the learned Judges as the case was throughout based on the sub-mortgage, the fact that a different relief was asked for in the amended plaint did not take away the applicability of Section 14, Limitation Act.

23. It is not necessary to multiply authorities on this part of the case.

24. This leads me to the next question whether the plaintiff had to amend the plaint by including the arrears of rent that had fallen due between the date of the filing of the suit in the revenue Court and the presentation o the plaint in the civil Court which was found to have jurisdiction to entertain the claim at the risk of the suit in respect of recovery of rent for these faslis being barred. It was held in -- 'Ramdutt Ram-kisen Dass v. E. D. Sassoon and Co.', AIR 1929 PC 103 (H), that when a plaint is returned for presentation to the proper Court, the suit in the Court having jurisdiction can be said to have been filed only on the date on which the plaint was actually represented in that Court. The opinion of their Lordships was expressed in the following words:

'It is quite clear that where a suit has been instituted in a Court which is found to have no jurisdiction and it is found necessary to raise a second suit in a Court of proper jurisdiction, the second suit cannot be regarded as a continuation of the first, even though the subject-matter and the parties to the suits were identical. The hardships that might arise in such a case have, however, been expressly provided for by the sections to which reference will now be made.'

25. The same principle is contained in the ruling of the Bombay High Court in -- 'Harachand Succaram v. G. I. P. Rly. Co., Bombay', AIR 1928 Bom 421 (I). This case refers to decisions which have taken the view that when the plaint was returned for presentation to proper Court the plaintiff should amend the plaint so as to include all claims that have arisen between the date of the original presentation and the date of re-presentation in the Court having jurisdiction.

26. In -- 'Medlot Khasia v. Karan Khasiani', 15 Cal LJ 241 (J), the view taken is that when the plaint is returned for presentation to proper Court the suit must be deemed to have been instituted in the Court having jurisdiction only on the date on which it ig re-presented and therefore the plaintiff should amend the plaint so as to include the Intermediate transactions between the date of the first presentation and the date of the filing of the plaint in the Court of competent jurisdiction. This principle was accepted by a Bench of the Bombay High Court in -- 'AIR 1928 Bom 421 (I)'. To the same effect is the decision of the Allahabad High Court in -- 'Abdul Karim Khan v. Muhammad Jan', AIR 1922 All 379 (K).

27. I express my respectful agreement with the reasoning of the learned Judges in these decisions and hold that the intermediate claim arising between the date of the original presentation of the plaint and the date of the re-presentation in the Court of competent jurisdiction must be included so as to avoid the operation of Order 2, Rule 2, C. P. C. In -- 'AIR 1939 Mad 724 (P)', Ven-kataramana Rao J. after referring to the decisions in -- 'AIR 1929 PC 103 (H)' and -- 'AIR 1928 Bom 421 (I)', observed as follows:

'By applying this principle it was held that the plaintiff should amend the plaint so as to include all intermediate transactions between the date of the first presentation and the date of presentation to the competent Court. The date on which the plaints were re-presented must be the date on which such a claim should be deemed to have been made; it was on that date fresh court-fee would have been paid and accepted by the Court.'

28. The basis of the rule in all these cases is that the suit must be deemed to have been filed only when the plaint is presented in the Court of competent jurisdiction and not on the date on which the plaint was presented in the Court not having jurisdiction. Consequently the plaintiff must include in the plaint all his claims up to the date of the filing of the suit. Otherwise the provisions of Order 2, Rule 2, C. P. C. would apply.

29. On this discussion, it follows, that the plaintiff's claim to arrears of rent for faslis 1351 and 1352 is barred under Order 2, Rule 2, C. P. C. and that the order of the lower appellate Court dismissing the suit is correct. In the result, this second appeal fails and is dismissed with costs. No leave.


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