W. Comer Petheram, Kt., C.J.
1. My answer to the question referred to us by the Judge of the Small Cause Court is, that the plaintiffs are debarred from bringing these two suits against the defendants by Section 43 of the Code of Civil Procedure. I frame my answer to the question in this form, because, as was said by Mr. Justice Wilson in the case of Anderson, Wright & Co. v. Kalagarla Surjinarain I.L.R. 12 Cal. 339, I prefer to guard myself, against (repressing any opinion wider than is necessary for the purposes of this case, and as was done by that learned Judge in that case, I found my judgment solely on the construction which I place on Section 43 of the Code. I agree with him in thinking that the words 'the whole of the claim which the plaintiff is entitled to make in respect of the cause of action' in that section in such a case as the present means the entire claim which the plaintiff has against the defendant at the time the action is brought, in respect of any failure or failures to accept or pay for goods purchased of him by the defendant under one contract, and that the whole of such claim must be included in one action.
2. I am not aware of any other decision on this section, except the one cited in the judgment, and to which I have referred, and, as I have said before, I base my judgment on the construction of that section alone.
3. This is a reference from a Judge of the Small Cause Court, Calcutta, in which the opinion of this Court is asked whether the two suits fried by that Court are or are not barred by reason of Section 43 of the Code of Civil Procedure. The objection taken is not merely technical, because, if under Section 43 the claims now made should have been made the subject of one suit, the amount involved would exceed the jurisdiction of the Small Cause Court.
4. The point referred to us is thus stated by the learned Judge of the Court of Small Causes:
Whether or not the plaintiffs are debarred from bringing two suits against the defendants based on one and the same contract, both causes of action having accrued at the time of the institution of the suits.
5. The case stated is admittedly on all fours with Anderson, Wright & Co. v. Kalagarla Surjinarain I.L.R. 12 Cal. 339 in which the learned Judges (Garth, C.J., and Wilson, J.) differed.
6. The two suits are based on breaches of the same contract. One suit is for the price of goods delivered, the other for damages for non-acceptance of other goods. Section 43 of the Code of Civil Procedure declares that 'every suit shall include the whole claim which the plaintiff is entitled to make in respect of the cause of action.' The matter submitted to us therefore is, are these one or two causes of action arising out of this transaction; in other words, what is the proper meaning of 'cause of action' in Section 43.
7. In the case already mentioned, laid down that the 'real principle which runs through all cases is that if the several items which make up the claim are of the same nature and form part of the same course of dealing so as to pass under the same description and form part of one transaction, they must be considered as one cause of action, and must be joined in one suit, though they may have arisen out of several contracts. But claims which are diverse in character, which do not answer the same description, and which would require a different class of evidence be support them, may be made the subject of different suits, though they may arise out of the same contract.' The learned Chief Justice observed that in that case, as in the case now before us, there is a claim for debt and a claim for damages,' and he mainly relied on the fact that the evidence in each case would be different, so as to entitle the plaintiff to bring separate suits.
8. Observed that 'in one sense every breach of contract is a separate cause of action.' But, he added, the illustration to Section 43 'shows that the framers have not here used the expression in this sense.' That illustration is: 'A lets a house to B at a yearly rent of Rs. 1,200. The rent for the whole of the years 1881 and 1882 is due and unpaid. A sues B only for the rent duo for 1882. A shall not afterwards sue B for the rent due for 1881.'
9. I do not propose to consider the cases cited by the learned Judges which relate to the practice in the Courts of England, and which do not, therefore, necessarily help us in deciding the practice in the Courts of India which has been laid down by a special Code, and has been discussed in some of our reported cases. The terms of Section 7 of the Code of 1859, and of Section 43 of that of 1882, do not vary materially. The former declared that every suit shall include the whole of the claim arising out of the cause of action'; Section 43 of the Code of 1882 provides that 'every suit shall include the whole of the claim which the plaintiff' is entitled to make in respect; of the cause of action.' The cases, therefore, decided under the Code of 1859 are in point.
10. Their Lordships of the Privy Council expressed their opinion on this subject in Moonshee Buzloor Ruheem v. Shumsoonnissa Begum 11 Moo. I.A. 551 see page 605 of the report. In that case, after previous litigation to recover various moveable properties misappropriated by the defendant, the plaintiff brought a fresh suit to recover some 'Company's paper' which she might have included in the former suit as part of her claim. Their Lordships stated that 'the correct test in all cases of this kind is, whether the new suit is, in fact, founded on a cause of action distinct from that which was the foundation of the former suit.... But the cause of action in the former suit of the respondent seems to them to be the refusal by the husband to restore, or his misappropriation of the wife's property which he says she intrusted to him. There is nothing to distinguish the deposit of this particular Company's paper from the deposit of those which she deposited with it, and has recovered in the former suit. It was a mere item of her demand, and is admitted on the face of the present plaint to have been omitted from it for no other reason than the very insufficient one before mentioned.'
11. In Thakur Shankar Baksh v. Dya Shankar L.R. 15 I.A. 66; I.L.R. 15 Cal. 422 the plaintiff sued for redemption of a mortgage of certain villages, having previously sued for redemption on a sub-proprietary or lesser title in the same village. Their Lordships held that the second suit was barred, holding that it did not make any difference as regards the cause of action, that in the former suit the plaintiff asked for the sub-proprietary right and in the latter for the superior proprietary right. 'It is not,' their Lordships state, 'part of the cause of action. It is the manner in which the redemption of the mortgage was to be given.' As their Lordships laid down in Soorjomonee Dayee v. Suddanund Mohapatter L.R. I.A. Sup. Vol. 212; 12 B.L.R. 304 'the term 'cause of action' is to be construed with reference rather to the substance than to the form of action.'
12. To apply the test laid down by their Lordships of the Privy Council, each of the two cases before us is founded, in fact, on a cause of action distinct from that which is the foundation of the other. The two suits were brought simultaneously, and they are no doubt different in the form of action, but still the claim on both is for damages on account of breaches of the same contract. The difference in the form of action is of no consequence, for it has been laid down by their Lordships of the Privy Council that the substance rather than the form of action should be taken into consideration.
13. In both the plaintiff seeks to recover moneys due from the defendant on breach of the same contract--in the one suit as the price of goods delivered, in the other as damages in consequence of non-acceptance of other goods. In substance, however, the two suits are the same. In both the plaintiff seeks to obtain the benefit of his contract. Taking this with the illustration to Section 43 of the present Code, I think that the plaintiff was debarred from bringing two suits, and we should answer the learned Judge of the Small Cause Court accordingly.
14. I concur in holding that the question upon which our opinion is asked by the learned Judge of the Small Cause Court should be answered in the affirmative.