1. This is a suit for redemption. The two main defences are that the suit is barred by Order II, Rule 2, and also by Section 11 of the Civil Procedure Coda. The Subordinate Judge overruled these objections and passed a preliminary decree for taking accounts. The defendant has appealed.
2. In order to understand the contentions in appeal it is necessary to set out the history of the case. The property in suit belonged to the 1st plaintiff. He executed a deed of mortgage in favour of one P. Rajaratnam Naidu on the 12th of July 1892. On the 6th of July 1898 he executed a general power-of-attorney to the same individual to facilitate the collection of rents from the tenants. One of the conditions of the power-of-attorney was that the agent should appropriate the net income towards the mortgage-deed and should also pay to the mortgagor a certain fixed monthly allowance. The relation between the mortgagor and the mortgagee became strained in or about the year 1910. In that year Original Suit No. 36 of 1910 on the file of the District Court of Chinglepnt was instituted against Rajaratnam Naidu by the plaintiff for the cancellation of the power-of attorney executed in 189; and for accounts. The defendant pleaded in limine to that suit that as the powerof-attorney was part of the mortgage transaction, the plaintiff should sue on the mortgage and not on the power-of attorney. The then District Judge upheld this objection and dismissed the suit. The second suit was filed in the Original Side of the High Court, viz., Original Suit No. 232 of 1914, in which it was claimed that the mortgage has become discharged, that the power-of-attorney should be cancelled and that the defendant should render an account. At the time of this suit Rijaratnam Naidu had died and the present defendant who is his legal representative was impleaded as defendant. Mr. Justice Kumaraswami Sastri who heard the original suit was of opinion that it was barred by res judicata and dismissed it. An appeal was preferred against that decree. At the hearing of the appeal, the plaintiff applied for permission to withdraw the suit with liberty to institute a fresh suit. This permission was granted and the present suit was instituted in the District Court of Chinglepnt for redemption based upon the mortgage of 1892.
3. The contention that the suit is barred by res judicata may be shortly disposed of. It is not denied that at no time was there any decision on the merits. The suits on both the occasions were dismissed on the pleadings. It is, therefore, clear that the present suit is not tarred by Section 11 of the Civil Procedure Code. Very recently, the Judicial Committee pointed out in Abdullah Ashgar Ali Khan v. Ganesh Dass 42 Jnd. Cas. 959 : 19 Bom. L.R. 972 that where the matter has not been heard and finally decided there can be ho bar of res judicata.
4. One other objection may also be shortly dealt with. It was contended by Mr. T. Rangachariar that the order of the Appellate Court permitting the withdrawal of the suit with liberty to sue again has been contravened by the plaintiff and that consequently the present suit is unsustainable. The order is in these terms: 'Leave to withdraw with liberty to bring a fresh suit on payment of defendant's ccsts here and below, within two months, in view of decision in Original Side Appeal No. 51 of 1914.' Insider to understand the import of this, it must be stated that in Original Side Appeal No. 51 of 1914, it was held by a Bench of this Court that suits for redemption should be institute in the Court within whose jurisdiction the mortgaged prdperty is situated. Therefore, what the learned Judges meant in giving leave to withdraw was that as the suit ought to be one for redemption and as the High Court can have no jurisdiction to entertain such a suit, plaintiff will be given liberty to withdraw the suit and to bring a propersuit in a proper forum. In effect the order amounted to saying that the High Court had no jurisdiction to hear the suit, which ought to be filed under the circumstances disclosed in the District Court of Chingleput and that con stquently the plaintiff should not be allowed to go of with the suit in Madras. If that is the correct interpretation of the order, there was no necessity at all for the granting of permission to due again. We take it that it was given ex abundanti cautela. Consequently, the non-payment of costs within the time mentioned in the order would not disable the plaintiff from suing upon the cause of action; moreover on the grammatical construction of the order, we are not prepared to say that the payment of costs was a condition precedent to the institution of the suit within two months. We must, under these circumstances, overrule the objection based upon the withdrawal order.
5. Now we go to the main objection. Mr. T. Rangachariar conceded at the outset that if the cause of action for the present suit can be held to have been different from the cause of action for Original Suit No. 36 of 19lO on the file of the District Court of Chingleput, he will not be able to maintain his position that Order II, Rule 2 of the Civil Procedure Code, barred the present suit, It is clear on examining the plaint in the first suit that although there was a casual reference to the mortgage of 1892 in the plaintit was solely based upon the power of attorney executed in 1898. The cause of action was stated to have accrued on the date on which notice to cancel the powerof-attorney was given, and the prayer was for the cancellation of the power of attorney. What was pleaded in defence was that that was not the proper suit. In the present suit, the cause of fiction is based on the mortgage document, and the prayer is for redemption. In our opinion, the two causes of action are entirely different. The fact that the plaintiff in the first suit had to rest his case npon an unsustainable cause of action is rot a ground for holding that that cause of action is the same as the true cause of action on which the subsequent suit is based. It was held in Pittapur Raja v. Suriya Row 12 I.A. 116. by the Judicial Committee with reference to Section 7 of the Act of 1859, which corresponded to Order II, Rule 2, 'that every suit should include the whole of the claim arising out of the cause of action, meaning the whole of the claim arising out of the same cause of action upon which the suit was brought, not that every suit should include every cause of action, or every claim, which the plaintiff had against the defendant.' This was followed in Mahomed Raisat Ali v. Hasin Banu 20 I.A. 155 : 6 Sar. P.C.J. 374 : Rafique and Jackson's P.C. No. 10 Ind. Dec. 737 and in Nagatlial v. Ponnusami 4 Ind. Dec. 741. Reference may also be made to Khedaroonissa Bibee v. Boodhee Bibee 13 W.R. 317. In Order II, Rule 2 of the Civil Procedure Code, there are three distinct clauses: Clause (1) deals with the splitting of cause of action, Clause 6 C.W.N. 17deals with the splitting of portions of the subject-matter, and Clause (3) to the same prdfcess in respect of reliefs arising from the same cause of action. The essential thing to be borne in mind in applying the rule is that the cause of action in the subsequent suit should be the same as the cause of action in the previous suit, and cot that the cause of action in the subsequent suit should have been made the subject of litigation in the former suit. If we keep this principle in mind, there will be no difficulty in understanding the various cases that have been quoted at the Bar.
6. Mr. T. Rangachariar relied upon Moonshee Buzloor Ruheem v. Shumsoonnissa Begum 11 M.L.A. 551. That related to the, omission of a portion of the subject matter in the previous suit. The cause of action for the second suit was a deposit of Government promissly notes; a portion of that same deposit was the subject-matter, of the pretielis litigation. The Judicial Committee pointed out that the word omission included both accidental and deliberate omissions and that consequently the subsequent suit was barred. In Rangayya Goundan v. Ranjofpa Rao 6 C.W.N. 17 : 28 I.A. 22 , another Privy Council case, two reliefs were available on the offense of action as stated in the previous plaint. One relief alone was asked for in the first litigation. The Judicial Committee pointed out that a suit for the other relief based upon that cause of action was not maintainable1. The same remarks apply to Abdul Hakim Rhan v. Karon Singh 30 Ind. Cas. 951; Naganada Iyyr v. Krishnctmurti Aiyar 6 Ind. Cas. 233 : (1910) M.W.N. 213, which was strongly relied upon by the learned Vakil for the appellant, proceeded on the footing that the subsequent suit for possession arose out of the cause of action for declaration which was the basis of the first suit. As regards Akayi Kunhi v. Ayissa Bi 26 M. 645 another case relied upon by Mr. T. Rangachariar, it is enough to say that that decision does not seem to be reconcilable with the decision of the Judicial Committee in Saminathan Chetty v. Palanioppa Chetty 26 Ind. Cas. 228 : (1914) A.C. 6l8. On the other hand, the decisions to which Mr. T.R. Ramachandra Aiyar drew our attention' support the principle we have already enunciated. The decision of the Judicial Committee in Amanat Bibi v. Imdad Hussain 15 I.A. 106 : Rafique & Jackson's P.C. No. 103 : 7 Ind. Dec. 117 is one of the strongest cases on the point. The Judicial Committee said in that case, 'it appears to their Lordships that the fair result of the evidence is that at the date of the former suit the respondent was not aware of the right on which he is now insisting. A right, which a litigant possesses without knowing or ever having known that he possesses it, can hardly be regarded as a portion of his claim' within the meaning of the section in question.' These words are exactly applicable to the present case. The plaintiff was not aware when he sued in Original Suit No. 36 of 1910 on the file of the District Court of Chingleput that his oause of action was only to sue on the mortgage. Raghava Chariar v. Seshadri Iyengar 15 M.L.J. 374 follows the decision in Amanst Bibi v. Imdad Husain 15 I.A. 106 : 5 Sar. P.C.J. 214 : Rafique and Jackson's P.C. No. 103 : 7 Ind. Dec 117. A Full Bench of this Court in Thrikaikat Marlathil Raman v. Thiruthiyil Krishnen Nair 16 M.L.J. 48 held that where the first suit is based upon an alleged lease and fails, a subsequent suit on title is not barred, the reason of the decision being that the cause of action for the subseauert suit is not the same as the cause of action for the fresh suit. Vusudeva Ravi Varma v. Athi Kottil Eazhuvan Kannanur 36 Ind. Cas. 51 is also to the same effect. It is not necessary to multiply citations. The principle deducible from these various eases is that where a suit is brought upon either a non-existent cause of action or upon a false cause of action, that will not bar the institution of a suit upon the true cause of action, because there is no identity of causes of action between these two suits. The reason of the decision of the Judicial Committee in Saminathan Chetty v. Palaniappa Chetty 26 Ind. Cas. 228; (1914) A.C. 618 is decisive on that matter. That was a suit upon a document which was found to be invalid. The Judicial Committee held that a suit based upon the original title which preceded the document was not obnoxious to the rule similar to Order II, Rule 2. The observations of the learned Judges in Ramaswami Ayyar v. Vithinatha Ayyar 13 M.L.J. 448 are exactly in point. For all these reasons we are of opinion that the decision of the Subordinate Judge is right; and we dismiss the appeal with costs.