B.K. Mukherjea, J.
1. This appeal is on behalf of the plaintiff, and it arises out of a suit commenced by him in the Court of the Third Munsif at Burdwan for recovery of arrears of durputni rents from the defendants, for the years 1343 and 1344 B.S. Of the two defendants, defendant 2 did not contest the suit, and the claim of the plaintiff was resisted by defendant 1 alone whose contentions were of a twofold character. The first contention was that there was a payment by this defendant of a sum of Rs. 49-7-0 every year on behalf of the plaintiff by way of contribution to the choukidari funds, and he was entitled to deduct this amount from the annual rents payable. The second defence was that the plaintiff's suit was barred under the provisions of Order 2, Rule 2, Civil P.C. It was averred that in the year 1939, the plaintiff's predecessor brought a suit against defendant 1 claiming rent due in respect of the same durputni, and in this suit, rent was claimed only for the year 1342 B.S. although at the date when the suit was filed, rents for the years 1343 and 1344 B.S. had already become due. The plaintiff, it was said, having omitted to sue for a portion of the claim which arose out of the same cause of action, was not entitled to bring a separate suit for recovery of the balance under Order 2, Rule 2, Civil P.C. Both these contentions found favour with the learned Munsif who dismissed the plaintiff's suit. The decision of the trial Judge was affirmed on appeal by the learned District Judge of Burdwan. The plaintiff has now come up on second appeal to this Court.
2. It is not disputed by Mr. Sen who appears for the appellant that a sum of Rs. 49-7-0 was paid by defendant 1 every year as contribution to the choukidari funds, and consequently these payments should be deducted from the total amount payable which is as 100 a year. Mr. Sen has also conceded that so far as defendant 1 is concerned, as he was a party to the previous suits, the bar under Order 2, Rule 2, Civil P.C., would apply, and the plaintiff is no longer entitled to claim against him the rents for the years 1343 and 1344 B.S. Section 147(2), Bengal Tenancy Act, it is conceded, has no application to the facts of this ease which is a suit for rent in respect of a tenure and not a holding. Mr. Sen's contention, however, is that as defendant 2 was not a party to the previous rent suit and the liability of the tenants to pay rent is a joint and several liability, the Courts below should have given the plaintiff a decree against defendant 2 for the rents due in respect of the durputni. This contention which was put forward on behalf of the plaintiff in the Courts below was negatived by them on the ground that a decree obtained against one of the joint promisors was a bar to a subsequent suit against others on the principle enunciated in the well known case in King v. Hoare (1844) 13 M. & W. 494 which has been followed by this Court in a series of decisions. The only point for our consideration in this appeal is whether the view taken by the Courts below is right.
3. It cannot be disputed that there is some conflict of judicial opinion on the point as to how far the rule of law enunciated in King v. Hoare (1844) 13 M. & W. 494 is applicable to this country in view of the express provision of Section 43, Contract Act. In Hemendro Coomar v. Rajendrolal ('77) 3 Cal. 353 it was held by Garth C.J. and Markby J. that Section 43, Contract Act, had not the effect of making the liability of joint promisors joint and several and did not make inapplicable in India the rule of law laid down in King v. Hoare (1844) 13 M. & w. 494 and Brinsmead v. Harrison (1873) 7 C.P. 547. The effect of Section 43, Contract Act, according to their Lordships, was merely to prevent one or some of the joint contractors who might be sued upon the debt to plead abatement of the suit on the ground that his or their co-contractors ought to be made parties defendants. This was a case in which a decree was obtained against one of several joint makers of a promissory note, and it was held that this was a bar to a subsequent suit. This decision was followed with approval by the Madras High Court in Gurusami Chetti v. Samurti Chinna Manar Chetti ('82) 5 Mad. 37. The view taken by the Bombay High Court does not seem to be quite uniform. In Shivlal Moti Lal v. Bridhi Chand Jivraj ('17) 4 A.I.R. 1917 Bom. 268, Macleod J. reviewed all the cases on the point, and agreed with the view taken in Hemendro v. Rajendro Lall ('77) 3 Cal. 353.
4. The Allahabad High Court in Muhammad Askari v. Radhe Ram Singh (1900) 22 All. 307, took an entirely different view, and it was held by Strachey C. J. and Bannerji J. that a judgment obtained amongst some of the joint mortgagors and remaining unsatisfied, was no bar to a second suit being brought against other mortgagors. It was pointed out by the learned Chief Justice in the course of his judgment that the theory that in the ease of a joint contract, there is a single cause of action which can be sued on only once, depends upon the right of the joint debtors in England to have all the contractors joined as parties to the suit on the contract. In India, such a right has been excluded by the express provision of Section 43, Contract Act, and consequently the foundation of the rule in King v. Hoare (1844) 13 M. & w. 494 has been taken away. The question came up for consideration before this Court in two recent cases, but no final decision was given in either of them. In Miss Moselle Solomon v. Martin & Co. ('35) 62 Cal. 612 Lort-Williams J. agreed with the view taken in Hemendro v. Rajendro Lall ('77) 3 Cal. 353, while Jack J. was definitely of opinion that under Section 43, Contract Act, the liability of joint promisors being both joint and several, there was no question in India of any single cause of action. As, however, both the learned Judges agreed in allowing the appeal upon a different ground, there was no final pronouncement on this point. In the subsequent case in Nilratan Mukhopadhya v. Cooch Behar Loan Office Ltd. : AIR1941Cal64 , Mitter J. reviewed the earlier authorities on the point, but as that was a case where the earlier judgment was passed by a foreign tribunal, the subsequent suit was held not to be barred, and it was unnecessary for the learned Judges to decide this matter finally.
5. We may say that there is much to be said against the extension of the rule in King v. Hoare (1844) 13 M. & W. 494, and Kendall v. Hamilton (1879) 4 A.C. 504, to this country. It may be noted that Pollock and Mulla in their commentaries on the Contract Act have given unqualified support to the view taken by the Allahabad High Court in Muhammad Askari v. Radhe Ram Singh (1900) 22 All. 307. In view of the conflict noticed above, the matter can be solved so far as this Court is concerned only by the pronouncement of a larger Bench. We do not think, however, that for the purpose of deciding this case the conflict of opinion is at all material. Mr. Sen argues that as the liability of tenants to pay rent is a joint and several liability, the principle in King v. Hoare (1844) 13 M. & W. 494 is not applicable to the present case. The authorities undoubtedly show that where the obligation is not joint but joint and several, the doctrine of merger does not apply, and a judgment against one of the debtors, without satisfaction is not bar to a suit against others. See Leake on Contract, Edn. 8, pages 722-723. See also Dhunpat Singh v. Sham Soonder ('80) 5 Cal. 291. The question now is whether the liability of the durputnidars to pay rent to the plaintiff is a joint and several liability in the present case. Under Section 146A(1), Ben. Ten. Act, all the co-sharer tenants in a tenure or holding have been made liable to the landlord jointly and severally for the rent payable to the landlord. If Section 146A, Ben. Ten. Act, applies to the present case, the liability of the defendants cannot but be joint and several.
6. A question may be raised, however, that as the contract of tenancy in this case came into existence much earlier than 1938 when Section 146A was introduced, the liability of the parties ought to be determined according to the law as it existed under old Act. Under the old law, the judicial decisions on the point were not very clear and uniform. In Kasi Kinkar Sen v. Satyendra Nath ('10) 7 I.C. 840 it was held by Mookerjee and Sharfuddin JJ. that when a landlord creates a tenancy in favour of two persons jointly, whether each is liable for the entire rent would depend upon the intention of the parties. The question whether a contract is joint or several or joint and several is a question of construction depending upon the intention of the parties to the contract. This position, it was said, was not affected by Section 43, Contract Act. This was a ease, however, where on the death of the original tenant, the tenancy had devolved upon his heirs jointly, and it was held that the heirs really constituted one body and could not be treated necessarily as persons who made joint and several promises. So far as the original lessees are concerned, the majority of the decisions seem to be in favour of the view that their liability is joint and several unless there is any thing to the contrary in the contract. It should be noticed that in the majority of these cases, reliance was placed in support of this position upon the provisions of Section 43, Contract Act itself. Vide Mohendra Nath v. Abinash Chandra ('23) 10 A.I.R. 1923 Cal. 615. As there was a conflict of opinion on the question as to whether a rent suit could be instituted against some of the heirs of the original tenant, the matter was referred to the Full Bench, and the majority of the Judges, constituting the Full Bench expressed the opinion that a suit against some of the heirs would be maintainable; Jagan Mohan Sarkar v. Brojendra Kumar : AIR1925Cal1056 . It is true that the Full Bench did not say in so many words that the liability of the heirs of the original tenant is joint and several, but that seems to us to be the implication of that decision.
7. If we hold that the liability of the two tenants in this case to pay rent to the plaintiff was a joint and several liability, no difficulty arises at all, and we can say on the authority of the English decisions themselves that the rule in King v. Hoare (1844) 13 M. & W. 494 is not applicable to such eases. But even if we hold that the liability of the defendants was joint and not joint and several, still then we are of the opinion that the rule in King v. Hoare (1844) 13 M. & W. 494 is not attracted to the facts of this particular case. The foundation of the rule in King v. Hoare (1844) 13 M. & W. 494, and Kendall v. Hamilton (1879) 4 A.C. 504 is that the cause of action in the case of joint contract being one, it is merged in the judgment, and no second suit against the other contractors can be brought upon it. Order 2, Rule 2, Civil P.C. is, however, not based upon the doctrine of merger. It enacts a special rule that if the plaintiff was able to claim a wider and much larger relief than that to which he limited his claim in the suit, and which arises out of the same cause of action he would not be entitled to recover the balance in a subsequent suit. The object of the rule is to prevent the splitting up of the same cause of action and to prevent the same person or persons being vexed twice. To make the rule applicable two things are essential: First, that the previous and the present suits must arise out of the same cause of action ; and secondly, they must be between the same parties. Vide Mt. Bindo Bibi v. Ram Chandra ('19) 6 A.I.R. 1919 All. 270.
8. So far as defendant 1 is concerned, it cannot be disputed that Order 2, Rule 2, Civil P. Cooperates as a complete bar to the present suit, but so far as defendant 2 is concerned, Order 2, Rule 2 is not directly applicable. The previous judgment can operate as a bar against him only if the cause of action against him is merged in the judgment, but as the claim for rent for the years 1343 and 1344 B.S. was not the subject matter of the earlier suit at all, the cause of action as against defendant 2, so far as this claim is concerned, could not be merged in the judgment. This view is supported by the decision of a Division Bench of the Madras High Court in Ramanjulu Naidu v. Aramudu ('10) 33 Mad. 317. We may say that we are in entire agreement with the reasoning of the learned Judges, and agreeing with that view, we are of the opinion that the principle in King v. Hoare (1844) 13 M. & W. 494, does not apply to the facts of this case even if we assume for the sake of argument that the liability of the two defendants was a joint and not a joint and several liability. The result, therefore, is that we allow this appeal, and modify the decree of the lower appellate Court. The plaintiff will have a decree against defendant 2 for the rent claimed by him after deducting the amount of Rs. 98-14-0 which was admittedly paid by defendant 1, The plaintiff will have proportionate costs from defendant 2 in the trial Court. There will be no order for costs in this Court as well as in the lower appellate Court.
9. I agree.