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Upendra Lal Mukerjee Vs. the Secretary of State for India in Council - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1893)ILR20Cal716
AppellantUpendra Lal Mukerjee
RespondentThe Secretary of State for India in Council
Excerpt:
relinquishment or omission to sue for portion of claim - civil procedure code (act xiv of 1882), section 43--cause of action, splitting of--onus of proof. - .....one and the same.2. this question is by no means an easy one, and it is clear that if the cause of action is absolutely identical, section 43 does prevent the second action being brought. but the question is whether when a person in the position of this plaintiff has sustained an injury in respect of his proprietary or permanent interest in these lands, and also any injury in respect of a temporary or leasehold interest in the lands, it can be said that the two causes of action are so identical that he is precluded by section 43 from bringing the second suit.3. we think that the interests in this case are so distinct, that it cannot be said that the causes of action are absolutely the same, and inasmuch as it lies upon the defendants to show that the matters are the same, and as we think.....
Judgment:

W. Comer Petheram, C.J.

1. This suit was a suit brought by one Upendra Lal Mukerjee, who was plaintiff in the suit (No. 32 of 1888) out of which the appeal No. 66 arose, to obtain the same relief in respect of a two-anna share in the same land which he held as an ijaradar for a term under the zemindar, and the Subordinate Judge has dismissed that suit entirely on ground that the plaintiff was prevented from bringing a separate suit by the provisions of Section 43 of the Code of Civil Procedure, he being of opinion that the cause of action was one and the same.

2. This question is by no means an easy one, and it is clear that if the cause of action is absolutely identical, Section 43 does prevent the second action being brought. But the question is whether when a person in the position of this plaintiff has sustained an injury in respect of his proprietary or permanent interest in these lands, and also any injury in respect of a temporary or leasehold interest in the lands, it can be said that the two causes of action are so identical that he is precluded by Section 43 from bringing the second suit.

3. We think that the interests in this case are so distinct, that it cannot be said that the causes of action are absolutely the same, and inasmuch as it lies upon the defendants to show that the matters are the same, and as we think they have failed to do so in this case, this appeal must be decreed, and the decree of the Lower Court will be varied, and the plaintiff will obtain a decree for two annas of the same land for which he has got a decree in the other suit.


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