SHAHJAHAN BEGUM Vs. SULTAN JAHAN BEGUM

JUDGEMENT

(1.) The sole question argued at the hearing of this second appeal was whether the suit of the plaintiffs- respondents was barred by Order 2, Rule 2 (3) C. P. C. By his referring order dated July 3, 1980 the learned Single Judge referred the following question for decision to a larger Bench: "whether on the facts and circumstances of the case the plaintiffs-respondents suit is barred by Order 2 Rule 2 (3) of the Code of Civil Procedure. ? Order 2 Rule 2 (3) of the C. P. C. reads as follows. "omission to sue for one of several reliefs, (3) A person entitled to more than one relief in respect of the same action may sue for all or any of such relief but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any reliefs, so omitted. " Order 2 Rule 4 is also material and relevant. It says. "4, Only certain claims to be joined for recorvery of immovable property. No cause of action shall unless with the leave of the Court, be joined with a suit for a recovery of immovable property except- (a) claim for mesne profits or arrears of rent in respect of the property claimed or any part thereof, (b) claims for damages for breach of any contract under which the property or any part thereof is held and. (c) claims in which the relief sought is based on the same cause of action. Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property. The Central feature of sub-rule (3) is that a person entitled to more than one reliefs in respect of the same cause of action may sue for all or any or such reliefs, but if he omits any, except with the leave of the Court, he is prohibited from suing for the omitted reliefs afterwards. Obviously sub-rule (3) will not apply where causes of action are different. In the present case, the first suit (suit No. 210 of 1960) was brought by the present plaintiffs- respondents for recovery of rent against the defendant appellants and for declaration of title with respect to the house in dispute. The trial Court held that the plaintiffs had failed to establish the relationship of landlord and tenant between the parties and so he was not entitled to recover the rent but since he had proved his title to the property he was entitled to declaration of his title and also for recovery of damages. The plea that the suit was barred by Section 42 of the Specific Relief Act was repelled. The suit was decreed accordingly. This decree was confirmed in appeal. When the matter was taken to the High Court, it took the view that the suit was barred by Section 42 of the Specific Relief Act and so the Court could not validly adjudicate the title of the plaintiffs in connection with the lower portion of the house in dispute. It declared that the plaintiffs were owners of the upper portion of the house in dispute in which the defendants had a right of residence. It confirmed the finding that the plaintiffs had failed to prove the relationship of landlords and tenant between the parties but it maintained the decree for damages. In sub stance the position was that the plaintiff-respondents suit for declaration stood partly decreed but so far as the suit for recovery of rent was concerned, it was dismissed because the plaintiffs had failed to prove that they were the landlords of the defendants. The second suit No. 333, of 1965 was filed by the plaintiffs-respondents for possession of the house and for recovery of damages for a period sub sequent to the period of damages for which the earlier suit had been decreed. The question is whether the present suit is barred by Order 2, Rule 2 (3) C. P. C. In our opinion, the earlier suit, as filed was for recovery of rent on the specific, allegation that the plaintiffs had let out the house to the defendants and the defendants had failed to pay the rent. By these averments, it is clear that the earlier suit was based on a different cause of action that is on the basis of the alleged contract of lease. The plaintiffs now claim recovery of damages in their capacity as owners of the defendants. The cause of action on which the previous suit was brought had no relation or relevance to the plaintiff's title as such. The plaintiff's had not terminated the tenancy of the defendants prior to the filing of the previous suit. Hence when the previous suit was filed no cause of action had accrued to the plaintiff to sue for possession or for ejectment of the defendants. The present suit was filed because of the findings recorded in the earlier suit that the plaintiffs had failed to establish the relationship of landlord and tenant with the defendants. Because of that finding the plaintiffs were obliged to sue for title. The cause of action for the present suit is on title. The plaintiffs claim in their character as lessors is not the basis of the present suit. In our opinion, the causes of action in the two suits were different and distinct. The plaintiffs hence could now sue for the relief of possession. The present suit, in our opinion, was not barred by order 2, Rule 2 (3) C. P. C. Reliance has been placed upon Syed Tayyab Hasan v. Syed Saghir Hasan and others (A. I. R. 1939 Alld. 52) and Saghir Hasan v. Tayab Hasan (A. I. R. 1940 Alld. 524 ). In both these Division Bench cases, the first suit was for mesne profits and the second suit for possession. It was held that the second suit was barred by order 2, Rule 2 (3) of the C, P. C. because the first suit being for mesne profits, it was evident that on the date of the first suit the defendant was alleged to be in unlawful possession of the plaintiffs' property and so relief for possession could be claimed in the first suit. The Full Bench decision in Balbit Singh v. Atma Ram (A. I. R. 1977 Alld. 211) is distinguisha ble. There the first suit was for recovery of arrears of rent as well as for mesne profits after the termination of the tenancy. The second suit was for ejectment. In the first suit, the plaintiff had applied for and obtained leave of the Court to sue for ejectment subsequently. The case therefore clearly fell under the exception given in order 2, Rule 2 (3) C. P. C. itself. A number of decisions have held that if the first suit was for possession, the second suit for mesne profits is not barred, (See Lalji Mai and another v. Hulsasi and another (3 I. L. R. Alld. 660) Mewa Kaur v. Banarsi Prasad (17 I. L. R. Alld. 533) Monohur Loll and others v. Gauri Sunkur (9 I. L. R. Cal. 283.) Sadhu Singh and others v. Pritam Singh and another (A. I. R. 1976 Punj. and Har. 38. ). In our opinion, the present suit is not barred by Order 2 Rule 2 (3) G. P. C. Since this is the only question for determination in the appeal, it is accordingly dismissed with costs. .