K MANOHARAN Vs. K KANNAN

JUDGEMENT

(1.) FOLLOWING are the substantial questions of law framed for a decision:

(2.) RESPONDENT as a lessee obtained possession of an oil mill, machineries and other equipments from one Sathyalatha from 09.07.1975 onwards,. He, on account of physical discomfort could not run the oil mill and hence entered into a license arrangement with the appellant. As per that arrangement, the appellant was to pay license fee of Rs.1,000/- per month to the respondent for use and occupation of the oil mill, machineries and other equipments. The license came to an end on 28.02.1991. The respondent filed O.S.No.111 of 1991 on 11.04.1991 seeking a decree for mandatory injunction to direct the appellant vacate the premises, pay arrears of license fee for the period from 30.04.1990 to 28.02.1991 and claiming Rs.1,000/- by way of damages for use and occupation. Rejecting the contentions raised by the appellant, that suit was decreed by Ext.A1, judgment dated 31.03.1991 as prayed for. The respondent got possession of the licensed premises on 26.11.1999. Thereafter, respondent filed O.S.No.176 of 2000 in the Munsiff's Court, Thalassery claiming "arrears of license fee" at the rate of Rs.1,000/- per month from 28.02.1991 till 26.11.1999. The appellant resisted that suit contending that the suit is barred under Rule 2 of Order II of the Code as the claim ought to have been included in O.S.No.111 of 1991 and that after the period of license expired, he is not obliged to pay arrears of license fee.

(3.) THE more important question is whether the suit is barred under Rule 2 of Order II of the Code as contended by the appellant and found in favour by the trial court? Sub-rule (1) of Rule 2 of Order II of the Code states that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. Sub-rule (2) of Rule 2 of Order II states that where a plaintiff omits 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. A reading of Rule 2 of Order II of the Code makes it clear that the bar of subsequent suit arises only when a claim is made with respect to the cause of action which arose to the plaintiff and which was agitated in the former suit. In Kewal Singh v. Smt. Lajwanti ((1980) 1 SCC 290) and State of Maharashtra v. M/s. National Construction Co. (AIR 1996 SC 2367) it is held that for application of Rule 2 of Order II, the court has to consider, among other things whether the cause of action in the previous suit and the subsequent suit is identical. Thus, to attract the bar under Rule 2 of Order II, the cause of action in the present suit and in O.S.No.111 of 1991 should have been identical.