1. Under Order II, Rule 2, that which is required to be included in the suit is the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; that is one and the same cause of action. The rule is framed to avoid the splitting of claims and remedies and does not apply where there are several causes of action. The object of the rule is to protect the defendant from being twice vexed for one and the same cause. But the parties themselves by the form of their convention determine whether the rule is applicable to them. The rule may operate to defeat a plaintiff with whom as in the present case, the merits have been held to rest. I agree therefore with what Garth, C.J., said that care must be taken to give the section no wider construction than it would reasonably bear: Pramada Dasi v. Lakhi Narain Mitter (1885) I.L.R. 12 Calc. 60, 63. The words of the section are easier to understand than some of the cases decided under it. We need not, however, enquire into them as each case must depend on its own facts, and the reasons which Judges have assigned for their opinions have not the same degree of authority as the decisions themselves: Caledonian Railway Co. v. Walker's Trustees (1882) L.R. 7 A.C. 259. I make these preliminary observations for I do not regard any of the decisions cited as binding on us except in a case involving the same set of facts. The old Section 43 as incorporated in Order II, Rule 2, of the Code has been amended so as to include in the explanation the following words italicised 'For the purposes of this rule successive claims arising under the same obligation shall be deemed to constitute but one cause of action.' Whatever meaning therefore may be given to the latter term (and on this matter varying views have been taken) the section expressly provides that the circumstances italicised shall be deemed to be but one cause of action, whatever might be the case in the absence of such enactment. Now if we exclude Clause 13 of the contract to which I next refer there can, I think, be no question that the case would fall within the words of the section quoted for the case is then merely one of several instalments under one and the same contract without anything else to indicate that the rule should not apply. It is argued, however, that there were in fact in this case two contracts by virtue of the provisions of Clause 13 of the contract which ran as follows: 'Except as above stated this indent is to be deemed and construed as a separate indent in respect of each item and instalment of goods and your rights and liabilities and ours respectively shall be the same as though a separate indent had been made out and signed in respect of each instalment.' The learned Chief Judge in a former case held that this clause did not bring the case within the operation of the section, but being, he says, in considerable doubt whether his decision was correct he has made the present reference. It may be assumed to be a general rule that parties cannot by consent abrogate what is the law but what however they can do is to indicate their intention and it is on this that the law operates variously according as that intention may be expressed. In such case it is not the law which is directly affected but the materials on which it operates.
2. The parties may express their intention as they choose, and if they express it in such a way that the effect is that two contracts are made where otherwise there would have been one the Court should give effect thereto. In Sesha Ayyar v. Krishna Ayyangar (1900) I.L.R. 24 Mad. 96, 109 the learned Judges say--'We do not think that when parties for whatever reason choose to agree that there should be two instruments and two obligations the Court is justified in saying that there is only one obligation.' Then what is the effect of the words of Clause 13? It is argued that they are inserted not for the purpose of creating two contracts but to declare that the breach of one part of a single contract is not to be deemed a breach of the entire contract. But I see nothing which warrants us in so restricting the sense of words which naturally bear a wider meaning. It seems to me that by these words the parties say in effect as follows: 'Here is what, but for our statement, would be regarded as one contract with successive claims thereunder. We desire to say that as regards each instalment we are contracting by separate contracts and in lieu of actually signing separate contracts we agree by this clause that each instalment shall be treated as such.' The result of this is, in my opinion, that there are separate contracts in respect of the July and August shipments. But then it is said that even if that is the effect of the clause and even if two separate contracts had been in fact passed, still the Order is a bar as it has been held in Anderson, Wright & Co. v. Kalagarla Surjinarain (1885) I.L.R. 12 Calc. 339 that even where there are different contracts yet if they form part of one transaction (whatever that may be) a breach of all of such contracts is only one cause of action. This was held in reliance upon the English cases establishing that a cause of action was not limited to claims arising upon one contract but might include claims upon several contracts provided they formed a part of a continuous course of dealing. This has been held broadly in some cases but as was argued before us this is now only so (according to the cases) where there is nothing to show that the transactions were intended to be kept distinct. The clause in question appears to me to evidence such an intention. Moreover, apart from the question whether the English decisions are appropriate authorities upon the construction of the section before us or not it is to be noted that the case Anderson, Wright & Co. v. Kalagarla Surjinarain (1885) I.L.R. 12 Calc. 339 was a case of several breaches under one contract and the question of several contracts as part of one continuous transaction was not in issue. So also, Duncan Brothers & Co. v. Jeetmull Greedharee Lall (1892) I.L.R. 19 Calc. 372 was a case of breach of one and the same contract. In Yashvant v. Vithal (1895) I.L.R. 21 Bom. 267, 271 Farran C.T. pointed out that these two cases which showed that all existing breaches of the same contract must be joined in the same suit, although they may have arisen at different times did not apply to the case before him as there were there two separate contracts contained in the same instrument. As regards separate contracts Umed Dholchand v. Pir Saheb Jiva Miya (1883) I.L.R. 7 Bom. 134 may be referred to. In Volkart v. Sabju Saheb (1896) I.L.R. 19 Mad. 304 the contract did expressly provide that each monthly shipment and item was to be treated as a separate contract and it was held that the terms of the contract being clear the plaintiff was entitled to bring separate suits for damages. This case seems to me in point.
3. The learned Chief Judge appears, however, to have doubted whether they established the plaintiff's contention having regard to the explanation appended to the rule. It is true that the scope of the identity of the cause of action has been extended by the addition of this explanation but only in so far as it supersedes those cases in which it was held that a suit on a collateral security given for a debt would not bar a suit for the debt itself. This is generally not the case now. The added words to the explanation do not affect the case before us or alter the law from what it was as appears from the illustration which is (subject to verbal alterations), the same now as it was under the Code of 1882. The added words only give express recognition to the law as it previously was.
4. I would, therefore, answer the question put to us in the negative and would hold that the plaintiff is not, under the circumstances stated, debarred from bringing two suits. The result, in my opinion, is that the plaintiff is entitled to a decree and should be awarded the costs of this reference.
5. Uniformity on questions of procedure under the Code is of such importance that I think I ought to follow the decision in the Madras High Court in Volkart v. Sabju Saheb (1896) I.L.R. 19 Mad. 304 and more especially as it meets with the approval of my learned colleague. In deference, therefore, to that authority I agree with Woodroffe J. as to the answer that should be returned to the reference.