SUBRAMONIA IYER Vs. MARIA

JUDGEMENT

(1.) The plaintiff is the landlord and the defendant is the tenant of certain immovable property. It was leased to the defendant on 11.4.1094 under an unregistered lease deed marked in the case as Ext. B. Ext. B was for a year certain and the rent reserved was payable on the 30th of Medom. After the efflux of the time fixed in Ext. B the tenant held over paying rent as fixed therein and the landlord received it. This state of things continued up to the year 1114. The result was that what was a tenancy for a year certain under Ext. B became in law converted into a tenancy from year to year. In 1119 a suit was filed for recovery of the rent which accrued due on 30th Medom 1116. Ext. J is the amended plaint in that suit. It states that another suit for recovery of the rent for the later years as also for recovery of possession was being filed. There was a decree in favour of the plaintiff. Ext. H is the judgment dated 9.8.1123. The suit out of which the second appeal arises was O.S. 286 of 1120 filed on 8.7.1120. Both the courts below decreed possession of the property but denied relief for the arrears of rent claimed for the three years 1117, 1118 and 1119 on account of the bar under O.2 R.2, of the Code of Civil Procedure. The only point in the second appeal relates to the rent that was refused by the courts below. Though exception is taken in the memorandum of appeal to refusal of the relief for all the three years, in the argument Mr. Iyengar, learned counsel for the appellant, confined his challenge of the decree of the court below to the rent of the year 1119 because as far as the claims for 1117 and 1118 are concerned they are obviously barred by O.2 R.2, being successive claims under the same obligation which under the Explanation to the rule constitute but one cause of action. The suit O.S. 762 was filed in the year 1119 and the claim for the two previous years must have accrued before the suit. The matter, however, was different as far as the year 1119 was concerned. There is no evidence as regards the date on which the earlier suit, O.S. 762 of 1119, held up in bar of the present claim, was instituted. Unless its institution was after 30.9.1119, i.e., after the claim for rent for the year 1119 accrued due there can be no bar under O. II, R. 2, because that rule only says that the plaintiff must include in the suit all the claims he could make in respect of the cause of action. If the rent had not accrued due he could not have claimed it in the previous suit and the onus of proving that the claim which is made cannot be enforced on account of an obstacle by a rule of law is on the party who alleges that obstacle. In other words, it is for the defendant to prove in this case that the suit O.S. 762 of 1119 was filed after the accrual of the rent for that year. As already stated, there is no evidence as regards that date and in its absence it cannot be said that the claims for the year 1119 is barred by the operation of O.2 R.2, of the Code of Civil Procedure. In the result, the second appeal is allowed to the extent it relates to the rent of the year 1119 and dismissed as regards the claim for the two earlier years 1117 and 1118. The appellant will receive and pay costs in proportion to his success and failure in the second appeal.

(2.) The defendant respondent has presented a memorandum of Cross Objections taking exception to the grant by the courts below of a decree for possession. Learned counsel for the respondent argues that as in the case of mesne profits due from a party wrongfully in possession even so in the case of a tenant a claim for rent when the plaintiff might have made a claim for possession as well will bar the latter claim under O.2 R.2. This argument cannot be accepted. The reason is that it is only when the identical cause of action, say, trespass, leads to two reliefs, one for mesne profits and another for possession, that the pursuit of one without seeking the other in a suit will bar the seeking of the other in a later suit. Even in such a case there is conflict of judicial opinion in certain aspects which need not be discussed and resolved in this case. That has no application to the case of a tenant. If the tenant defaults payment of rent, the landlord has a cause of action for the rent when it is overdue. That cause of action will not enable the landlord to seek possession from the tenant unless default in prompt payment of rent created forfeiture of the tenancy which is not the case here. I, therefore, express no opinion on that question. If the determination of tenancy which is the cause of action for the relief of possession is independent of default in payment of rent it is undoubtedly a different cause of action. A landlord may no doubt combine in the same suit reliefs under both causes of action under the 3rd and 4th rules of O. 2 but it is optional with him to do so and there is no bar to a later suit on his choosing to sue for relief on but one of those cause of action in a suit. The rule in O.2 R.2, to quote the words of their Lordships of the Privy Council (In Dayana v. Pana Lana: 41 I.A. 145) is directed to securing the exhaustion of the reliefs in respect of a cause of action, and not to the inclusion in one and the same action of different causes of action, even though they arise from the same transaction. The memorandum of objection should, therefore, be dismissed with costs.