P.N. Mookerjee, J.
1. In April, 1937, the appellant Mrs. L.A. Saunders entered into occupation of the disputed premises No. 8, Canal Street, Calcutta, as A tenant under the respondent's -predecessor. There was no written document creating or evidencing the lease but the rental was Rs. 101/47-per month and it was payable monthly according to the English calendar.
2. On 15-9-1944, the respondent company (Messrs. Land Corporation of Bengal Ltd.) purchased the suit premises and the appellant's tenancy continued under them. In December 1949, the respondent company served upon the appellant a full 15 days' notice to quit requiring her to vacate the suit premises on the expiry of the said month and, on 6-2-1950, the present suit was instituted for her eviction. In the plaint there was an allegation inter alia that the plaintiff company required the suit premises bona fide for building and rebuilding purposes. That was also the allegation in the notice to quit and the bar of the Bent Control law against eviction was sought to be avoided on that ground.
3. The suit was resisted on various pleas, but, for my present purpose, it is necessary to mention only four defences, namely, (i) that the suit was barred by reason of the dismissal of a previous suit for ejectment (ii) that the 15 days' notice to quit was illegal, invalid and insufficient as, under the law, a six months' notice was necessary to terminate the suit tenancy (iii) that the plaintiff's case of bona fide requirement for building and rebuilding purposes was untrue and (iv) that the suit tenancy was governed by the Calcutta Thika Tenancy Act and the defendant was protected by the said statute from eviction.
4. The learned Munsif overruled all the defences and decreed the plaintiff's suit. On appeal that decision was affirmed by the learned Subordinate Judge. Hence, the present Second Appeal by the tenant defendant.
5. In support of the appeal Mr. Dutt urged the four defences, to which specific referencehas been made above. The last two defences,however, may be disposed of without much discussion and, accordingly, for the sake of convenience, I take up the points in the reverse order.
6. The defendant's tenancy admittedly included a residential building in the suit premises which formed part of the property let out to her. Clearly, therefore, the Calcutta Thika Tenancy Act can have no application to this case which falls to be governed by the Rent Control law. The defence under the Calcutta Thika Tenancy Act and the defendant's claim of protection thereunder must, therefore, be overruled.
7. The question of bona fide requirement also need not detain us long. Both the Courts below have concurrently found that the plaintiff's case that they require the suit premises bona fide for building and rebuilding purposes has been sufficiently proved. On the materials before me I have little hesitation in accepting the said finding. The Bench decision of this Court in the case of -- 'Bhulan Singh v. Ganendra Kumar', : AIR1950Cal74 , lays down the guiding principles .in such matters and those principles fully support the plaintiff's case.
8. I take up now the defence plea of bar, based on the dismissal of the previous suit. The relevant facts are not in dispute and they appear as follows:
9. In March 1949, the plaintiff served upon the defendant a notice to quit requiring her to vacate the suit premises on the expiry of that month. There also the plaintiff's allegation was that they (the Company) required the said premises for building and rebuilding purposes. The defendant, however, did not leave as required by the said notice and so a suit for ejectment waa instituted. That suit was eventually dismissed for default on 21-11-1949. Thereafter, the present notice to quit was served in December 1949 terminating the defendant's tenancy with the end of that month and the present suit was brought on 6-2-1950.
10. In this suit the plaintiff's allegation is that the earlier suit for ejectment was allowed to be dismissed for default or non-prosecution, as, after the previous notice to quit, rents had been accepted by them from the defendant and they felt that, as a consequence, the said notice had been waived. On the above state of facts, the appellant contends that the present suit is barred under Order 23 Rule 1 (3) and Order 9 Rule 9, Civil P. C. I ought to mention here that this latter provision was not mentioned either in the written statement or in the grounds of appeal to this Court although express reference was made to Order 23 Rule 1 (3) of the Code. In the lower appellate Court this plea in bar was not pressed at all. The omission, however, of this plea before the lower appellate Court or non-reference to Order 9 Rule 9 in the written statement or in the grounds of appeal in this Court is not, in my opinion, fatal to this point of law when no new facts are necessary for its consideration. I have, therefore, allowed Mr. Dutt full opportunity to argue this point, but, to my mind, it is of little assistance to his client in the ultimate analysis.
11. It is quite obvious that Order 23 Rule 1 (3) of the Code has obviously no manner of application to the facts, stated above. The earlier suit was not withdrawn but was dismissed--may be, it was allowed to be dismissed -- for default or non-prosecution. It was clearly a dismissal underJO. 9 Rule 8 of the Code and it is impossible to treat it as withdrawal under Order 23 Rule 1 (3). This is sufficient to reject the appellant's argumentso far as it is based on Order 23 Rule 1 (3) of theCode.
12. As to Order 9 Rule 9 of the Code, the position is a little different but the ultimate result is the same. That Rule bars a subsequent suit on the 'same cause of action'. Identity of the cause of action is the test and, unless, that is established, the bar of this rule will not apply. Judged by this test, the appellant's contention must fail.
13. The words 'cause of action' in Order 9 Rule 9of the Code refer 'entirely to the grounds set forth in the plaint as the cause of action or, inother words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour' vide -- 'Mst. Chand Koer v. Partab Singh', 15 Ind App 156 (PC) (B), which was a case under the corresponding Section 103 of the old Code. The phrase 'cause of action' has also been recently considered by the Judicial Committee in relation to another prevision, viz. Order 2 Rule 2 of the Code where also it occurs and their Lordships have adopted the meaning ('principle') set out above, for the purpose of the said rule too, vide -- 'Mohd. Khalil Khan v. Mahbub Ali Mia . The classic judicial definition of the phrase as meaning 'every fact which it could be necessary for the plaintiff to prove if traversed in order to support his right to the judgment' & as including 'every fact) which it would be necessary to prove if traversed in order to enable the plaintiff to maintain his action' in the leading English cases of -- 'Cooke v. Gill', (1873) 8 CP 107 (D), and -- 'Read v. Brown1, (1888) 22 QBD 128 (E), was accepted as the guide and various decisions of the Board were considered and examined in the light thereof.
It is worth noting that the decisions so considered included cases under Order 2 Rule 2 and Order 9 Rule 9 of the Code of 1908 and/or the corresponding section or sections of the old Code or Codes and the discussion was quite general & was not confined to any particular provision. It is true that in ', of the Report their Lordships referred to '15 Ind App 156 (PC) (B)', as a case under Section 43 of the Act 1882 corresponding to Order 2 Rule 2 of the present Code, although it was a case under Section 103 of the old Act corresponding to the present Order 9 Rule 9, but that was an obvious slip and did not in any way affect or detract from the generality of the meaning of the phrase 'cause of action' as laid down by their Lordships. It seems to me. that this decision of the Judicial Committee is sufficient authority for the view that the phrase 'the same cause of action' has the same meaning in either of the said two provisions.
The cause of action must, of course, be 'the cause of action which gives occasion for and forms the foundation of the suit' but it includes the whole of the right and its infringement, in the light of the allegations in the plaint. The same cause of action would obviously imply identity of the cause of action the right and its infringement, as a whole and, although, in considering this question, the Courts will look to the substance of the matter my difference'as to anyessential part would be fatal to the proof of this identity. On this question of identity of the cause of action, or 'the same cause of action' a useful and convenient test not necessarily conclusive but certainly workable was also laid down by their Lordships, viz., whether the same evidence would support the claim in both the suits.
14. Tested by the above 'principles' the appellant's plea of bar under Order 9 Rule 9 of the Code must inevitably fail. The 'March' notice to quit would undoubtedly be an essential part of the cause of action of the earlier ejectment suit and in the same way the 'December' notice would be an essential part of the cause of action for the later, that is, the present,' suit for ejectment. These two notices are obviously not the same and so the cause of action in the two suits would be different. Clearly also the same evidence would not have supported the plaintiffs case in the two suits. To succeed in the earlier suit, the plaintiff had certainly to lead evidence to prove the sufficiency and validity of the 'March' notice and due service thereof. To succeed in the present suit, he has to establish those elements in regard to the 'December' notice. The evidence for these two purposes would plainly be different and the same evidence would not necessarily prove the two notices and/or their service. I, hold, therefore, that the cause of action of the two suits are different and not the same, and, accordingly, Order 9 Rule 9 of the Code cannot apply to bar the present suit.
15. The matter may also be looked at from a slightly different point of view. The 'December' notice to quit on its express terms, (vide the words 'I hereby give you notice to quit and vacate on expiry of the month of December 1949 the undermentioned property which you hold under my client aforesaid as a monthly tenant at will' occurring in the said notice) was a clear recognition of the continuance of the defendant's tenancy upto December 1949. This tenancy had to be terminated before the present suit for ejectment could be filed; otherwise, there would be no cause of action for this. suit. This termination was effected by the 'December' notice to quit which' completed--though it may not have wholly constituted -- the cause of action for the present suit. Essentially, therefore, it was a new cause of action to which Order 9 Rule 9 of the Code can have no possible application.
16. In the above view of the matter I reject the appellant's argument, based on Order 23 Rule 1 (3), and Order 9 Rule 9, Civil P. C.
17. The sufficiency and validity of the notice to quit now remains to be examined. There is no dispute that a full 15 days' notice to quit was properly served but the point has been raised that a 'six months' notice' was necessary to determine the defendant's tenancy. This argument is based on Section 106, Transfer of Property Act which prescribes 'six months' notice' in cases of tenancies for 'manufacturing or agricultural purposes' and 'fifteen days' notice' in all other cases. The appellant contends that the tenancy in suit was for 'manufacturing purposes' within the meaning of the said section. The respondent, on the other hand, seeks to bring it within the words 'a lease of immoveable property for any other purpose' as used in the statute.
18. In the written statement the allegation was that the suit tenancy was taken for 'residential and workshop purposes'. That was repeated inthe appellant's evidence which, has been accepted by the two courts below. The term 'workshop purposes' has been elaborated by the appellant in her evidence as meaning 'purposes of her electroplating business1 which, according to her, included also plating of new articles. All this may be accepted but, even then, in my opinion, the appellant cannot succeed.
19. Conceding that 'electroplating' would be 'manufacture' for the purpose of S. 106, Transfer of Property Act, the appellant's tenancy would, on her own case and evidence, be for 'residential and manufacturing purposes' as distinguished from 'manufacturing purposes' and these 'mixed and multiple purposes' would take it outside the earlier clause and bring it within the later residuary clause 'for any other purpose'. That is the effect of the decision of this Court in the case of -- 'Sati Prasanna v. Md. Fazel', : AIR1952Cal320 , which was affirmed on appeal by the appellate Bench in -- 'Mohd. Fazal v. Sati Prasanna', A. F. O. D. No. 52 of 1950 (Cal) (G), decided by Chief Justice Harries and Mr. Justice Banerjee on' 23-11-1950 where Banerjee, J., delivering the judgment of the Court, observed inter alia that
'where it cannot be said that the purpose of the lease was solely either for agricultural or manufacturing purpose, it would come within the second category, viz., 'a lease for any other purposes'.
This Bench decision is. binding upon me, sitting singly, and, upon its authority, I must overrule the appellant's contention.
20. To get over this difficulty Mr. Dutt sought to rely on the theory of primary purpose and he pointed out that, although, the appellant's tenancy was prima facie for 'residential and manufacturing purposes' it was primarily for 'manufacturing purposes and, hence, for the purpose of Section 106, Transfer of Property Act, it must be held to have been for manufacturing purposes'. On this argument, it is enough to say that no such case was made either in pleading or at the trial and there is not the slightest evidence -- nor a suggestion even -- in the papers before me in support of Mr. Dutt's contention. I, accordingly, reject also this plea of the appellant.
21. I have discussed above all the points, urged in support of the appeal, and, in my view, none of them can be accepted. This appeal, must, therefore, fail and it has to be dismissed, although, in the circumstances of this case, I feel that such dismissal should be made subject to the granting of some time to the appellant to vacate the suit premises. The appellant has undoubtedly spent. a fairly large amount for her electroplating business which is carried oh in the said premises. She has also erected certain .sheds and installed heavy machineries at considerable cost. The result of this litigation was uncertain and the rights of the parties, involved in the issues in the present suit, were not very clear. In such, circumstances, it is only proper that the appellant should have sufficient time to remove her said business sheds and machineries from the disputed premises. At the same time, however, it must be borne in mindthat the respondent, company requires the suit premises bona fide for 'building and rebuilding'. Taking everything into consideration, I am inclined to grant the defendant four months' time to vacate the suit premises.
22. I, accordingly, dismiss this appeal subject to this that the defendant appellant will have time till the end of August, 1954 to vacate the suit premises and during this period, the respondent company will not be entitled to execute this decree for ejectment.
23. I further direct that the parties will bear their own costs in this Court.