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Agustus Brothers Vs. M.A. Fernandez - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported inAIR1916Mad544(2); 31Ind.Cas.59
AppellantAgustus Brothers
RespondentM.A. Fernandez
Cases ReferredMirkhan v. Kadarsa
Excerpt:
civil procedure code (act v of 1908), sections 4, 6, order ii, rule 2 - provisions of code, whether applicable to village munsifs--suit for recovery of portion of price of article sold instituted in village munsifs court--subsequent suit for balance of amount due on account of various purchases, whether barred. - .....of in the court of the village munsif, order ii, rule 2, corresponding to old section 43 of the civil procedure code, would be a bar to the present suit. order ii, rule 2, says (omitting portions unnecessary for this case); 'every suit shall include the whole claim which the plaintiff is entitled to make in respect of the cause of action.... where a plaintiff omits to sue in respect of, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted.'3. i am not at all sure that where a customer makes distinct purchases on distinct dates, the merchant has not got a distinct cause of action in respect of each purchase or set of purchases. in beni ram v. ram chandra 26 ind. cas. 302, it was held doubting the decision in preonath mukerji v. bishnath prasad 4.....
Judgment:

Sadasiva Aiyar, J.

1. The facts which have led to this reference by the Subordinate Judge of Cochin in a Small Cause Suit in his Court, might be shortly stated thus: The defendant made purchases from the plaintiff's shop for small sums from time to time till 26th May 1912, made part payments and had to pay Rs. 88-7-0 as balance on such purchases. The suit was brought in September 1913 for the recovery of this Rs. 88-7-0 and interest. The plaintiff had, at the end of 1912, brought a suit in the Village Munsifs Court of Cochin for the recovery of Rs. 2-4-0, being the price of one bottle of whisky purchased by the defendant in April 1912, this item of Rs. 2-4-0 being one of the several items of accourt in respect of the purchases made by the defendant up to the 26th May 1912.

2. The lower Court has made this reference assuming that, if the first suit had been brought in an ordinary Civil Court instead of in the Court of the Village Munsif, Order II, Rule 2, corresponding to old Section 43 of the Civil Procedure Code, would be a bar to the present suit. Order II, Rule 2, says (omitting portions unnecessary for this case); 'Every suit shall include the whole claim which the plaintiff is entitled to make in respect of the cause of action.... Where a plaintiff omits to sue in respect of, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted.'

3. I am not at all sure that where a customer makes distinct purchases on distinct dates, the merchant has not got a distinct cause of action in respect of each purchase or set of purchases. In Beni Ram v. Ram Chandra 26 Ind. Cas. 302, it was held doubting the decision in Preonath Mukerji v. Bishnath Prasad 4 A.L.J. 85, that when a debtor gave a hundi for Rs. 500 out of a debt of Rs. 4,000 and odd, and the creditor first brought a suit on the hundi, he was not precluded from maintaining a second suit for the balance due on account by reason of Order II, Rule 2. In the case Preonath Mukerji v. Bishnath Prasad 4 A.L.J. 85 the soundness of the decision in which, was doubted in Beni Ram v. Ram Chandra 26 Ind. Cas. 209 the Court held that where a doctor got a promissory note for Rs. 700 for seven days' fees and continued to attend on the patient for six days more and then first brought a suit on the promissory note and recovered Rs. 700, he was barred by Section 43 [Order II, Rule (2)] from bringing a suit for the Rs. 600 due for the attendance during the remaining six days. In Mandal & Co. v. Fazul 26 Ind. Cas. 209, Jenkins, C.J., and Woodroffe, J., held that though the contract between the parties was contained in one and the same writing, if that writing expressly said that it related to two separate contracts (one relating to the delivery of cases of candles to be shipped in July 1908 and the other to the delivery of cases of candles to be shipped in August 1908), two separate suits can be maintained. I am aware that a merchant does not usually bring numerous separate suits against the same customer, each suit for the amount due on each purchase transaction. But that is because he is entitled under Order II, Rule 3, Civil Procedure Code to unite in the same suit several causes of action against the same defendant unless prohibited by Rules 4 and 5 of Order II. Order II, Rule 2, prohibits only the splitting of claims arising out of the same cause of action and if the cause of action in respect of purchase for Rs. 2 4-0 was different from the other causes of action in respect of other purchases and if there was no agreement (or settlement of accounts) between the parties which consolidated all these separate causes of action into one cause of action, I think that Order II, Rule 2, has no application and this reference is, therefore, incompetent.

4. Assuming, however, that the claim made in the Village Munsif's Court was on the same cause of action as that under which the present suit is brought, the question is whether Order II, Rule 2, is applicable when the first suit had been brought in the Village Munsif's Court. In Mirkhan v. Kadarsa 13 M. k145 it was held that the Civil Procedure Code has no application to the Courts of Village Munsifs at all, as Section 6 of the old Civil Procedure Code provided that nothing in the Civil Procedure Code affected the jurisdiction or procedure of Village Munsifs and that hence the concurrent jurisdiction of the ordinary Civil Courts was not taken away by the provision in Section 15 of the Civil Procedure Code that 'every suit shall be instituted in the Court of the lowest grade competent to try it.' Though, in the present case, the provision of the Civil Procedure Code to be considered is not Section 15, but Order II, Rule 2, the same reasoning applies. But the learned Subordinate Judge who has made this reference entertains a doubt as to whether the decision in Mirkhan v. Kadarsa 13 M.k 145 even as regards the applicability of Section 15 of the Civil Procedure Code, has not become inapplicable where the decision has to be under the new Code owing to the change in the language of Section 6. Section 6 of the old Code of 1882 enacted (among other things) as follows: 'Nothing in this Code affects the jurisdiction or procedure (c) of Village Munsifs or village punchayats under the provisions of the Madras Code or id) shall operate to give any Court jurisdiction over suits of which the amount or value of the subject-matter exceeds the pecuniary limits of its ordinary jurisdiction.' Section 6 of the Code of 1908 says: 'Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.' The learned Subordinate Judge who has made this reference, thinks that the omission in the present Code of the words 'affects jurisdiction or procedure of Village Munsifs, etc.,' on which words the learned Judges who decided Mirkhan v. Kadarsa 13 M.k 145, relied, might make some difference, though he notices that Section 4 of the new Code of 1908 is more widely worded than Section 4 of the old Code. While Section 4 of the old Code saved certain specific Acts affecting the Central Provinces, Burma, Punjab and Oudh and the laws passed under the Indian Councils' Act of 1861, relating to suits between landlords and tenants and suits relating to partition of immoveable property, Section 4 of the new Code of 1908 very generally says that nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or...any special jurisdiction or any special form of procedure prescribed, by or under any other law.' It was because the savings under Section 4 had been extended in the new Code, Section 6 of the new Code confined itself to the provision (d) of the old Code Section 6, namely, that ordinary-pecuniary jurisdiction should not be exceeded. The learned Subordinate Judge says that Section 4(1) of the new Code as regards this saving clause is somewhat differently worded from the saving clause of Section 6 of the old Code, and hence he is in doubt as to whether the ruling in Mirkhan v. Kadarsa 13 M.k 145 is applicable when interpreting Section 4(1) of the new Code in the same manner as when interpreting Section 6 of the old Code. I do not find any material change in the wording and if there is any difference, the saving under Section 4(1) of the new Code is larger in scope than that under Section 6 of the old Code and hence the ratio decidendi in Mirkhan v. Kadarsa 13 M.k 145, is a fortiori applicable to Section 4(1) of the new Code.

5. Ameer Ali and Woodroffe are also of opinion; (See Commentary under Section 6) that it was in view of the extended scope of Section 4 of the present Code, the reproduction of Sections 6 and 7 of the last Code (except as to the final paragraph, which is the present Section 6) has been considered unnecessary.

6. It is to be observed that in making this reference the Subordinate Judge has not clearly drawn up the point or points on which doubt is entertained by him (see Order XLVI, rule l). However, taking it that the reference is whether Order II, Rule 2, applies when a suit is brought for the balance of a claim arising out of the same cause of action after a suit had been brought for one portion of the claim in the Village Munsif's Court, I would answer the reference in the negative.

Napier, J.

7. I agree that the suit is not barred by Order 11, Rule 2, and think that the question is clear beyond doubt. Section 4 of the Code of 1908 is very wide in terms; therefore, the provisions of the Code are inapplicable to Village Munsifs' Courts. There are no provisions in the Code for these Courts corresponding to Sections 7 and 8, which make certain sections applicable to Provincial Small Cause Courts and Presidency Small Cause Courts. Chapter IV to Chapter VI of the Madras Village Courts Act, I of 1889, provides complete procedure for such Courts, covering the same ground as the Civil Procedure Code does for its Courts. Section 18 enacts the very rule which the Subordinate Judge seeks for in the Civil Procedure Code. There are numberless sections of the Civil Procedure Code which are manifestly inapplicable to village Courts. The reference, therefore, must be answered in the negative.


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