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Muniyandi and ors. Vs. R. Muthuswami Iyer - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1972)1MLJ372
AppellantMuniyandi and ors.
RespondentR. Muthuswami Iyer
Cases ReferredShanmugham Pillai v. Syed Gulam Ghose I.L.R.
Excerpt:
- .....of 1965) was based on a cause of action of theft and the cause of action in the present suit is different and that, therefore, order 2, rule 2 will not apply. this contention is not understandable. in the earlier suit it is true that what was contended in the plaint was that the tenants were liable to pay waram when they raised blackgram and that they had illegally removed the blackgram from the threshing floor. this cannot be called a cause of action for theft. it is a clear case of a suit for rent. the claim in the small cause suit is not one for damages because admittedly the defendants in that suit were tenants and there could be no cause of action for damages when the claim is made for arrears of rent from a lawful tenant.4. again, it is contended by the learned counsel that.....
Judgment:

Ramaswami, J.

1. The only point that arises for consideration in this second appeal is whether this suit claiming arrears of rent for faslis 1372 to 1374 is barred under Order 2, Rule 2, Civil Procedure Code, in view of the decree in S.C.S. No. 1096 of 1965. That the defendants are the tenants under the plaintiff, is not in dispute. Under Exhibit A-4 dated 19th July, i960, the plaintiff leased the property in favour of the father of the defendants and after the death of the father the defendants had been in possession and enjoyment as tenants of the suit lands. Even after the expiry of the term fixed under Exhibit A-4 the defendants were treated as tenants by holding over and that is also not in dispute in this suit.

2. The plaintiff filed S.C. No. 1097 of 1965 against the defendants claiming a sum of Rs. 104 being the value of 52 marakkals of blackgram which is the due in respect of certain cash crops raisad in the suit lands for fasli 1374. Though at the time when the small cause suit was filed the defendants were in arrears of rent for faslis 1372 to 1374 in respect of paddy crops raised also, that was not included in the claim in the small cause suit. Though in the plaint in the small cause suit it was stated that the plaintiff was reserving his right to file a separate suit for the recovery of the arrears he did not obtain the permission of the Court for such reservation. This suit has been filed claiming a sum of Rs. 814-27 being the arrears of rent due in respect of the suit lands for faslis 1372 to 1374. This claim ought to have been included in the prior suit. Having not been included, the claim is clearly barred under Order 2, Rule 2, Civil Procedure Code.

3. What the learned Counsel for the respondent wants to contend is that since the earlier suit was a small cause suit and this suit being an original suit, it cannot be said that order 2, Rule 2 would apply. This is clearly untenable. In respect of the same arrears of rent, he cannot split the claim into two and file one as a small cause suit and the other as an original suit and say that one is not barred by the other. Again, it is contended by the learned Counsel for the respondent that the earlier suit (S.C. No. 1097 of 1965) was based on a cause of action of theft and the cause of action in the present suit is different and that, therefore, Order 2, Rule 2 will not apply. This contention is not understandable. In the earlier suit it is true that what was contended in the plaint was that the tenants were liable to pay waram when they raised blackgram and that they had illegally removed the blackgram from the threshing floor. This cannot be called a cause of action for theft. It is a clear case of a suit for rent. The claim in the small cause suit is not one for damages because admittedly the defendants in that suit were tenants and there could be no cause of action for damages when the claim is made for arrears of rent from a lawful tenant.

4. Again, it is contended by the learned Counsel that these two suits are on different causes of action because they are covered by two different agreements. Actually, there is no agreement at all produced in this case. The tenants were holding over after the expiry of the period prescribed under Exhibit A-4. Further as held in Shanmugham Pillai v. Syed Gulam Ghose I.L.R. (1904) Mad. 116, even if the tenant had executed different muchilikas for different years, still, if on the date when the suit was filed, arrears of rent were due for different fasli years, then only one suit could be filed for all the claims, and if any claim Was held over, it would be barred under Order 2, Rule 2 in a subsequent suit. The judgment of the lower appellate Court reversing the judgment of the trial Court is, therefore, not sustainable. The second appeal is allowed, the judgment and decree of the lower appellate Court is set aside and the suit is dismissed with costs throughout.


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