JANKIDAS Vs. LAXMINARAIN

JUDGEMENT

(1.) THIS is a revision by the plaintiffs whose suit has been dismissed by the Judge, small Cause Court, Jodhpur.

(2.) THE plaintiffs' suit was briefly this: Laxminarain defendant had mortgaged his house usufructuarily for Rs. 700/- to the plaintiffs on 27-6-1953. On the same day, the plaintiffs mortgagees in their turn gave a lease of the house to the defendant mortgagor at Rs. 3/8/- per month, and put the lessee in possession. As the rent was not paid, the plaintiffs filed a suit for arrears of rent and ejectment in the court of Joint Kotwal No. 2, Jodhpur. That suit was fought up to the High Court of the former State of Marwar, and the High Court gave a decree for arrears of rent, but decided that the lessee could not be ejected and the prayer for ejectment was not allowed. The present suit was filed by the plaintiffs in February, 1953, claiming arrears of rent amounting to Rs. 126/- for 3 years preceding the date of suit. The suit was resisted by the defendant, who among other pleas raised the objection that the suit was barred under Order II, Rule 2, C. P. C. A preliminary issue appears to have been framed by the Judge, Small Cause Court, on this point, and he held that the suit was barred by Order II, Rule 2, and dismissed it. The present revision is by the plaintiffs against this dismissal.

(3.) THE case of the defendant that the suit was barred under Order II, Rule 2, is put in this way. It is said that the mortgage deed and the deed of lease were executed on the same day, and the amount of rent was equal to the amount of interest on the principal sum assured. These were therefore parts of the same transaction, and as the plaintiffs had already sued for what was in fact interest alone when they brought the earlier suit for arrears of rent, they could no longer sue again either for interest in the shape of rent or interest and principal.