1. The property in suit is a house let on an agreement under which the tenant undertook to vacate the premises on a month's notice. The notice was duly given but the tenant did not surrender; the landlord sued for possession and obtained a decree; he now SUCK for arrears of rent due under the lease.
2. The question for decision is whether the suit is barred by Section 43 of the Civil Procedure Code, whether, that is, the claim for rent is a part of the claim which the plaintiff was entitled to make in respect of the cause of action in which he founded his suit for possession,
3. Let it be granted for the purposes of this judgment that the appellants are right in contending that the claim for rent and the claim for possession are both claims arising out of, or founded on obligations created by the agreement, that is to say, that the learned Judge was in error in holding that the foundation of the earlier action was tort and of the latter contract. That does not conclude the question for it remains to be seen whether both claims are claims in respect of the cause of action for ejectment. It is clear that the causes of action in both suits are not the same. The cause of action for any portion of the rent is complete when that part of the rent is due and is unpaid; the cause of action for recovery of the property does not arise until the tenancy is determined-the one is founded on the obligation to pay for the occupation, the other on an obligation to withdraw from the occupation. The whole claim which the plaintiff is entitled to make in respect of the latter cause of action seems to be a claim to be put in possession of the property. He is entitled no doubt to join in the same action, claims for rent and damages [section 44 (a) and (6) ] but those claims are parts of separate causes of action and are not parts of the claim in respect of the cause of action for recovery of possession. They are unconnected with the obligation to surrender. In Venkoba v. Subbanna 11 M. 151 the learned judges draw attention to the change made by the later codes as compared with Act VIII of 1859 and explain the law as it now stands to require the plaintiff to include in his suit not only the claim arising out of that cause of action but also any other claim founded on the same cause of action and enforceable at the date of the former suit.' It is to be inferred that a claim in respect of ' a cause of action is a claim founded on' that cause of action, and the difference between a claim founded on' a cause of action and a claim ' arising out of ' a cause of action, seems to be more a difference of metaphor than a difference in the quality of the claim.
4. To read the phrase in respect of the cause of action ' as we are asked on behalf of the appellants to read it, that is to say, as equivalent to arising out of any obligation created by the contract which creates the obligation on which the cause of action is based' would be, we think, to extend its meaning further that the language, will properly go-and might conceivably require a plaintiff to join in his suit for recovery of immoveable property causes of action which by Section 44 he is precluded from joining without the leave of the Court or at any rate would render unnecessary the latter part of exception (a) and exception (b) in that section.
5. Reliance is placed on behalf of the appellants on Shunmugam Pillai v. Syed Gulam Ghose 27 M.k 116 but that case is distinguishable; the learned Judges there hold that ' there was but one cause of action, non-payment of rent' and though the rents became payable under different documents and at different times they are only different claims under the same cause of action or tenancy.' The cause of action based on the obligation to pay rent and the claims of rent for different years were claims in respect of that obligation and, therefore, in respect of the cause of action.
6. The cases in which it has been held that a claim for mesne profits due at the time of a suit for possession, may be subsequently enforced in a separate suit Lalessor Babui v. Janki Bibi 19 C.b 615 and vice versa that a claim for possession may be enforced after a claim for mesne profits has been made good in a former suit. Tirupati v. Narasimha 11 M.k 210; Monohur Lall v. Gouri Sunkur 9 C.m 283 are not so strong as the present case. They may be open to the observation made by the learned Judges in Mewa Kuar v. Banami Prasad 17 A. 532 in which the opposite view is taken to the effect that the cause of action for possession, and the cause of action for mesne profits are one and the same, the wrongful possession of the defendant. By wrongfully holding on to the property, the defendant deprives the plaintiff of his possession and the fruits thereof. This view has the support also of Venkoba v. Subbanna 11 M.k 151 to which we have referred: but that case has been departed from and the Calcutta cases followed in a recent case in this Court Gulla Saranna v. Majanti Ramanadhan S.A. 614 of 1905 and we are not called upon to decide between them. In the suits with which we are concerned the causes of action are clearly different and we do not think that the claim now made is a part of the claim which the plaintiff was entitled to make in respect of the cause of action in the former suit.
7. We, therefore, dismiss the Letters Patent Appeal with costs.