1. This is an appeal from a decree of the District Judge of Murshidabad, affirming a decree of the Subordinate Judge of Berhampore dismissing the plaintiffs' suit for patni rent and cesses for the years 1345 and 1346.
2. The plaintiffs previously brought Suit No. 557 of 1941 in the second Court of the Munsif at Jangipore for the rent of the same patni tenure for the year 1344 on 2nd Baisakh 1348 (15th April 1941) when the rent for the years 1345,1346. had already fallen due. That suit was dismissed for default or 10th April 1942. The present suit was brought on 15th April 1942.
3. It is found by both the Courts that the rent for 1344 had been paid amicably before 10th April 1942 when suit No. 557 of 1941 was dismissed by the following order 'plaintiff's pleader states that he has to instruction. Ordered, dismissed for default.' The defendants claim that the present suit is barred by the terms of Order 2, Rule 2, Civil P.C. In the lower Courts the plaintiffs contended that the former suit was dismissed under Order. 9, Rule 3 of the Code, and that they are permitted to bring a fresh suit under the terms of Order. 9, Rule 4.
4. The trial Court held, (1) that Order 9, Rule 4 is not applicable to the present case; the suit was dismissed after fill payment (2) that Order 9, Rule 4 is controlled by Order 2, Rule 2.
5. The appellate Court held (1) that it is by no means clear that the defendants were absent when the previous suit was dismissed for default, no evidence was given at the time of trial, and the point seemed to have occurred to the learned advocate for the first time during argument; (2) when assuming it was a case of dismissal under Order 9, Rule 3, Order 9, Rule 4 would not be applicable to enable the plaintiffs to bring a fresh suit on the same cause of action here, because admittedly the claim had been satisfied.
6. For the appellant the following points were urged before us (1) that the terms of the order of dismissal of the former suit quoted above are themselves sufficient to show that this was a case of dismissal under Order 9, Rule 3 because there is no mention therein of presence of the defendants or their pleader and no order as to costs. (2) It is further urged on the basis of some remarks by Woodroffe J. in 45 cal. 3051 at p. 315 that Order. 2, Rule 2 will not operate except where there is a decision and therefore whether the dismissal of the earlier suit is one under Order 9, Rule 3 or Rule 8, Order. 2, Rule 2 is no bar to the present suit. (3) That the object of Order 9, Rule 4 is to put the plaintiff in the same position (subject to limitation) as if the suit had never been brought; the plaintiff is given the alternative to have the order of the dismissal set aside if he can explain his non-appearance, or to bring a fresh suit, the only difference being the effect of limitation, and the fact that he has to pay fresh court-fees. The ease is similar to withdrawal with liberty to bring a fresh suit under Order 23, Rule 1 and it has been recognised in Behari Lal Pal v. Baran Mai Dasi ('95) 17 All. 53s that in such a case the plaintiff may include in the fresh suit a relief he failed to claim in the earlier. (4) The general principle of Order. 2, Rule 2 is that the defendant shall not be troubled more than once for claims which the plaintiff is entitled to make in respect of one cause of action. If he is allowed to reagitate the claim in the original suit there is no reason not to allow him to add claims he might have made in the original suit. (5) The words 'fresh suit' in Order. 9, Rule 4 are not to be interpreted as 'identically the same suit afresh.
7. In my opinion the plaintiffs' suit must fail for either one or other of the two first reasons given respectively by the trial Court, and the lower appellate Court. The trial Court held that Order. 9, Rule 3 does not apply to the dismissal of the earlier suit as it was dismissed after payment. Whatever the form of the dismissal, it is clear that in substance the suit was dismissed because the plaintiffs' claim had been satisfied. If there be any frailty into this reason, then the first reason of the lower appellate Court suffices. I do not think that the form of the order is sufficient in the absence of other evidence to establish that the defendants were not present at any rate through an instructed pleader, to see that the case was dismissed after they had paid up the amount claimed therein. If so the dismissal was under Order 9, Rule 8. The onus to establish that the dismissal was under Order. 9, Rule 3 is on the plaintiffs.
8. It is necessary then to consider whether: Order. 2, Rule 2 is a bar to the present suit, assuming, that the earlier suit was dismissed under Order 9, Rule 8. In the course of the discussion it will be helpful also to refer the terms of Order 9, Rules 3 and 4 though on the above view these rules do not directly come into question.
9. It is important to note that the special definition of cause of action applicable to the obligation to pay rent and claims for rent given, by the explanation to Order. 2, Rule 2 is 'for the purposes of this rule.' It has therefore no application to other rules. Again the difference between, Rule 9, and Rule 3 of Order 9 should be noted, in the former there is a bar to bringing a fresh suit on the 'same cause of action.' There is no bar in Rule 9 to the plaintiff bringing the present suit. It is not for the same cause of action, the extended definition in Rule 2 does not apply. But this does not mean to say that Order 2, Rule 2 itself, for which the extended definition does operate, does not bar the suit. In my opinion it clearly does. The plaintiffs are barred by Rule 9 itselt from bringing a fresh suit on the original cause of action, the obligation to pay and claim for rent for 1344. Therefore in the present suit they are in the words of Order 2, Rule 2 'afterwards' suing for a claim which arose out of a cause of action which for the purposes of Order. 2, Rule 2 included successive claims for 1344,1345, 1346; arising under the obligation to pay rent his they cannot do.
10. The second point taken for the appellants based on Upendra Narain Roy v. Janaki Nath Roy 6 A.I.R. 1919 Cal. 904 may be considered in this connection. It is urged that as there was no decision even taking the case one of dismissal under Order 9, Rule 8, then the authority of the remarks of Woodroffee J., shows that Order 2, Rule 2 will not take effect to bar the present suit. The case dealt with was one of amendment of the plaint, and the learned Judge prefaced his remarks about Order 2, Rule 2 by saying that the point showed more ingenuity than substance and that Order 2, Rule 2 did not touch the matter before the Court. Nevertheless he did however proceed to discuss the rule and say. 'The rule says that 'he shall not afterwards sue' that it is assumed there haa been a suit carried to decision, and a subsequent suit.' The questions of the effect of Order 2, Rule 2 in a case where there had been though not strictly a decision an order, which barred a fresh suit on the same cause of action, i.e., under Order 9, Rule 8, or where there had been an order under Order 9, Rule 3 where a fresh suit was expressly permitted subject only to the bar of limitation, were not before the Court in that case and were not decided; the remarks of the learned Judge are certainly entitled to the greatest respect, but I respectfully think too much should not be made of the use of the word 'decision' in the remark quoted.
11. We may again refer to the provisions of Rules 4 and 9 and compare them. In both the plaintiff may revive his original suit if he satisfies the Court of the reasons for his non-appearance. If he does so succeed then he might in either case on the authority in Upendra Narain Roy v. Janaki Nath Roy 6 A.I.R. 1919 Cal. 904 apply to amend his plaint to add an omitted claim. If he fails then under Order 9, Rule 4 he is at full liberty to bring a fresh suit without qualification as to the same cause of action; there is no bar except the possible one of limitation, which is expressly mentioned. If he fails under Rule 9 however then he cannot bring a suit on the same cause of action.
12. Though it is not strictly necessary to decide the point in this case, it seems to me that the intention under Order 9, Rule 4, is that the plaintiff should be put in the same position as if the first suit had never been brought, subject only to limitation, and payment of court-fees as was held for a withdrawal under Order 23, Rule 1 in the Allahabad case in Behari Lal Pal v. Baran Mai Dasi ('95) 17 All. 53s and he cannot be said to be 'afterwards' suing for any addition claim which 'for the purposes of' Order 2, Rule 2 a: on what that rule makes 'the same cause action'.
13. On the other hand, where the dismissal of the earlier suit is under Order 9, Rule 8, as the plaintiff cannot bring a suit again on the 'same cause of action', i.e., the actual cause of action as made out in the earlier suit, then if he bring a suit for remaining claim, which may (sic) different cause of action under Order 9, Rule 9 a. (sic) barred by its terms, but is the 'same cause of action' for the purposes of Order. 2 Rule 2, there (sic) clearly 'afterwards' suing, in my opinion, in respect of the additional claim, and, Order 2, Rule 2 operates a bar.
14. I would therefore uphold the decree of the lower appellate Court for either one or the other of the two first reasons of the respective Courts as set out above. I am unable to agree with the second reason given by the trial Court, and I also cannot accept the second reason given by the lower appellate Court. If the dismissal of the earlier suit was really under Order 9, Rule 3 then the plaintiffs here are permitted under Rule 3 to bring a fresh suit on the cause of action, the claim of rent for 1345 and 1346. As I have said Order 2, Rule 2 does not operate to bar the latter suit, and it is immaterial whether in the meantime or even before the disposal of the earlier claim had been satisfied. If the defendants (sic) to rely on the amicable payment before the disposal of the last suit they must show that the plaintiff has failed to establish that the dismissal was made under Order 9, Rule 3. In fact I agree that they have so succeeded. For these reasons I would dismiss the appeal with costs.
15. I agree that the appeal be dismissed with costs for either or both of the first two reasons of the respective Courts as set (sic) in the Judgment of my learned brother, which I have had the advantage of perusing.