1. The point which comas before us in this reference is a very short one. It is stated that the suit is a suit for rent at the rate claimed, on the ground of its having been previously paid at; that rate. It appears that, previously to this suit, the plaintiffs had brought a suit for enhancement of rent on the ground of notice, and failed in that suit, because service of notice was not proved. The question is, whether they can now recover the old rent in this suit. We have referred to an abstract of the plaint in the former suit, and we find that the precise nature of this suit was this. It was a suit claiming rent at an enhanced rate on the ground of an alleged notice of enhancement, justified, as it was said, by the circumstances of the case.
2. We have to say, whether the present suit is birded by reason of the provisions of Section 43 of the Code of Civil Procedure. That section says: 'Every suit shall include the whole claim which the plaintiff is entitled to make in respect of the cause of action.' And it is added: 'If the plaintiff omit to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.' The only question therefore is, whether the claim in the present suit is founded upon the same cause of action as the claim in the former suit.
3. The relation of these two claims to one another was considered by the Privy Council in the case of Soorasoondery Dabee v. Golam Ally 15 B.L.R. 125 (note). The passage in which this matter is dealt with occurs at page 130: 'It was contended on the part of the appellants that, even if they were not entitled to enhance the rent, they were entitled to recover the rent at the rate specified in the kabuliyat. Their Lordships are of opinion that a suit to enhance is very different from a suit to recover arrears of rent at the rate originally fixed, and that it is founded entirely on different principles. In a suit for enhancement, it would be no bar to plead that all the arrears according to the original rate had been paid,' and so on.
4. It is true that in many cases since the date of that decision, it has been held that a suit may be so framed, that the Court may, as an alternative, give the plaintiff a decree for rent at the old rate, when be has failed to establish his right to rent at the enhanced rate. But that, it is not because the two claims are founded upon the same cause of action, but because, under the provisions of the Procedure Code, different causes of action may be combined in the same suit. These are different causes of action, based upon two distinct obligations having distinct origins. This is how the matter was viewed in the case of Khedaroonissa Bibee v. Boodhee Bibee 13 W.R. 317. That case was decided under the terms of the Procedure Code of 1859, but those terms were, for the present purpose, substantially identical with the language of the present Code, and Loch and Hobhuse, JJ., held that the dismissal of a suit for rent at an enhanced rate was no bar to a subsequent suit for rent at the old rate. On the other hand, in the more recent case of Kunnock Chunder Mooheerjee v. Guru Dass Biswas 9 C 919 : 12 C.L.R. 599, Cunnngham and Maclean, JJ., took a contrary view. We are unable to concur in the latter decision, and it appears to us that those learned Judges addressed their attention not precisely to the point arising on the section. The section speaks of claims arising out of the cause of action, whereas what the learned Judges say is 'it is true that the Privy Council have pointed out that a suit for enhancement and a suit for rent are different proceedings. None the less they are, in our opinion, remedies, and claims arising in respect of the same subject-matter.' So it may, no doubt, be correctly said they are, but they are not in our judgment claims arising out of the same cause of action.
5. It has not been shown that any issue or question arises with regard to the rent for 1289, except the question of law on which we have expressed our opinion. The decrees of the lower Courts will, therefore, be set aside, so far as they relate to the rent of 1289, and the plaintiff will have a decree for the rent of that year with costs.