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E.A. Cohen Vs. A.M. Paruk - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1933Cal831
AppellantE.A. Cohen
RespondentA.M. Paruk
Cases Referred and Adhirani Narain Kumari v. Radhu Mohapatrao
Excerpt:
- .....as showing that the plaintiff would have a separate cause of action in respect of claim for each month's rent and whether assuming six months' rent to be due in arrears he could file six separate suits each suit covering the rent for one month. i think it is quite clear on a consideration of this position that the cause of action in the present case remains the same in respect of each of the monthly rentals. there is no separate agreement as regards each month's rent. the relationship between landlord and tenant which is what constitutes the right or liability had its origin in the beginning of the tenancy. a suggestion was made that the evidence in suit no. 3471 was not the same as in suit no. 3470 in so far that in 3471 a question was raised as to whether in respect of the rent for.....
Judgment:

Pearson, J.

1. This rule arises out of a Small Cause Court decree and relates to the decree passed in suit No. 3471 of 1931. It appears that the plaintiff sued to recover from the defendant certain rent for certain premises belonging to the plaintiff. He proceeded to file two suits in the Small Cause Court, one being Suit No. 3470 covering rent for the premises less certain allowances or set off for the period from December 1930 to July 1931. He also filed a second suit No. 3471, for rent of the same premises for the months of August and September 1931. The former suit was valued at Rs. 838 and the latter suit at Rs. 688. It is admitted that the suits taken together were in excess of the pecuniary jurisdiction of the Small Cause Court Judge and the question is whether the plaintiff could split up his claim in this manner into two portions so as to bring each portion within the pecuniary jurisdiction of a Small Cause Court.

2. Now, before me it has been contended on behalf of the defendant that such a procedure is not in accordance with law and is prohibited by Order 2, Rule 2, Civil P.C. The illustration to that rule is very much on all fours with the present case and reliance is also placed upon the cases of Taruck Chunder Mookerjee v. Panchu Mohini Debya (1881) 6 Cal 791. Sheo Sunkur Sahoy v. Hridoy Narain (1883) 9 Cal 174 and Adhirani Narain Kumari v. Radhu Mohapatrao (1886) 12 Cal 50. Now it is quite clear that the intention of the Code is that every suit is to include the whole of the claim arising out of the particular cause of action and the substantial question which one has to determine in a case like the present is whether it can be said that the fact that the rent in the present case was payable monthly is to be taken as showing that the plaintiff would have a separate cause of action in respect of claim for each month's rent and whether assuming six months' rent to be due in arrears he could file six separate suits each suit covering the rent for one month. I think it is quite clear on a consideration of this position that the cause of action in the present case remains the same in respect of each of the monthly rentals. There is no separate agreement as regards each month's rent. The relationship between landlord and tenant which is what constitutes the right or liability had its origin in the beginning of the tenancy. A suggestion was made that the evidence in Suit No. 3471 was not the same as in Suit No. 3470 in so far that in 3471 a question was raised as to whether in respect of the rent for certain months a cheque sent by the defendant purporting to cover the rent for a particular month (although in fact a larger amount was due) had been accepted or ought to be regarded as having been accepted as payment in full of the rent of that particular month, and inasmuch as that evidence was required to be given in Suit No. 3471, it was said that was a matter differentiating it from the other suit namely, Suit No, 3470, in which such evidence was not required; therefore that test, which is one of the tests as to whether the claim arises out of the same cause of action, was not to be found in this case. The answer to that as such is, I think, that particular feature of the case is irrelevant to the origin of the cause of action.

3. The origin of the cause of action remains the same, whether or not the defendant raises a particular point as minimising his liability in respect of any one particular month or not. Then it is suggested that upon the facts of this particular case there should be no interference. Order 2, Rule 2, it is said, is for the benefit of the defendants and that in the present case the two suits were tried together, evidence was received in both and the suits were filed together and one judgment covered them both. That in my judgment does not really have any bearing on the question of whether the cause of action in respect of the two suits is the same. If the cause of action is the same then the two suits ought to have been comprised in one. If the two suits had been comprised in one then the suit would have had to be brought in some other Court which had jurisdiction to deal with that suit. I agree that the effect of what has happened is not that both the suits must be dismissed. The effect would be that the moment one of the suits is decreed the other suit must fail, partly upon the assumption that if amalgamated with the former suit it would be beyond the pecuniary jurisdiction of the Small Cause Court and partly upon the footing that the first suit was within the jurisdiction of the said Court, and so far as the claim of the second suit is concerned the plaintiff must be taken to have abandoned it as he is entitled to do in order to bring the first suit within the jurisdiction of the Small Cause Court. The principle that the Court should not interfere in revision in a case where substantial justice has been done cannot apply to a case like the present. Here the simple substantial question is whether or not these two claims arise out of the same cause of action. If they do then the result must necessarily follow.

4. In this view of the matter the rule must be made absolute, the decree of the lower Court must be set aside and the suit dismissed. Hearing fee is assessed at one gold mohur.


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