ABASBHAI SHAIKH ABDUL HUSSEIN Vs. BHIMJI MALJI CHOKSEY

JUDGEMENT

(1.) This is an appeal from a judgment of Mr. Justice Baker. The plaintiff is the owner of certain immoveable property which he let to the defendant on a monthly tenancy and he sues to recover possession of the property, for three months arrears of rent at the rate of Rs. 200 per month and a further sum for use and occupation after the expiration of the notice to quit, that is to say, in effect for mesne profits. The defendant in his written statement in the first instance stated that he was not bound to quit because of a certain contract under which he was entitled to occupation till June 30, 1923, but that defence was not persisted in. By his amended written statement he takes the point that the plaintiff had already sued him in the Small Cause Court for a sura of Rs. 400 " pagri" or premium for four months at the rate of Rs. 100 per month, and he says that that suit, having regard to the terms of Order II, Rule 2, of the Civil Procedure Code, is a bar to the plaintiff's present suit for arrears of rent. The parties framed seven issues, but the learned Judge has not in terms answered them. The only two which he deals with in substance are, first of all, whether the plaintiff's claim to arrears of rent does not lie having regard to Order II, Rule 2, and, secondly, whether the defendant's counter-claim, with which I will deal presently, is well founded.

(2.) Now, the first point arises in this way. There is no doubt that the property was originally let by the plaintiff to the defendant in the year 1918 and the rent payable was Rs. 200 per-month. There is also no doubt that as from May 1923 further sums have been payable--whether as rent or premium is a question which we have to decide. Further sums amounting to Rs. 1,200 per annum have been payable and have been called premium and it was for four months arrears of this premium that the suit was brought in the Small Cause Court. Under Order II, Rule 2, it is provided that the plaintiff must make all claims which he is entitled to make under the same cause of action, and if he omits to do so he cannot afterwards sue for the balance, and therefore the question which has to be determined in this case is whether the plaintiff !s claim to the rent and the plaintiff's claim to premium arose under the same cause of action. The learned Judge deals with that point in this way. He says:-- The accounts will show that Rs. 300 a month is debited as rent and although the agreement to pay the premium may have been entered into on a different date from that on which the agreement to pay rent was entered into it really only represents one cause of action, viz., the right to recover the rent, the rent being raiseid from time to time by the plaintiff by threats of evicting the defendant, the actual case which the Rent Act was designed to prevent, and the attempt to make out that this premium has nothing to do with rent fails.

(3.) The case had been made by the plaintiff that the premiums charged were in order to induce him not to open a rival shop to the defendant, and the learned Judge held that that case was not proved. But the effect of the passage which I have read, and the judgment which was given, seems to be that the learned Judge holds that this sum which was made payable in 1923 as premium was in effect additional rent. But the learned Judge's finding is not easy to follow The learned Judge says, the obligation to pay the rent and the premium may have arisen at different dates but nevertheless there is only one cause of action. Now, the question might arise in one or other of three ways. If in fact the rent was made payable under a contract made in 1918 and a premium was made payable under a contract made in 1923, I should say that it was quite clear that the cause of action for premium and the cause of action for rent is in each case different. In each case there is a different contract which the plaintiff has to sue upon. In such a case Order II, Rule 2, would not apply. If, on the other hand, the contract made in 1923 was that the old rent of Rs. 200 per month was to be increased to Rs. 300 per month, then it is quite clear that in future there would be only one cause of action for the whole of the rent, that cause of action being the later contract which increased and fixed the amount of rent. Obviously in that case Order II, Rule 2, would apply, as there would only be one cause of action. But then there might be a third case, because it might have been provided in 1923 that rent should be paid at the old rate of Rs. 200 per month and in addition a premium of Rs. 100 per month should be payable, so that in that case we should have one contract providing for payment both of rent and of premium. I think in that case Order II, Rule 2, would apply and if the plaintiff sued only for the premium he could not afterwards sue for the reni The learned Judge has not shown us definitely into which of these categories he thinks this case falls, but from his reference to the contract for payment of premium being made at a different date from the contract to pay rent, I am rather inclined to think that he puts the case in the first category, namely, that of two distinct contracts, and, in my opinion, on the evidence that is the right view. I think that on the evidence both of the plaintiff and the defendant the only agreement which was made in 1923 was an agreement to pay a premium at the rate of Rs. 1,200 per annum and that no alteration was made in the contract of tenancy for the payment of a rent, at Rs. 200 a month. It appears from the evidence that the plaintiff had given the defendant a notice to quit in April 1923 and this agreement to pay a premium was the consideration for the plaintiff agreeing to withdraw that notice. But neither in the evidence of the plaintiff nor in that of the defendant is there any reference to any agreement affecting the payment of the rent which had been payable since 1918. It is said that the books of the parties treat this payment of Rs l,200 a year as rent. It is quite true that in the plaintiff's books it is brought in under the heading of "shop rent", but it was not in fact treated as rent. The payments for the year 1923-24 are two payments of Rs. 500 and one of Rs, 200 and it seems to me clear that the amount was not added to the rent and treated as increased rent. In the defendant's books he also refers to it as rent, but in his account, which is Ex. 12, he brings it in as a payment on the debtor side of Rs. 1,200 and in Ex, 13, which is the one which I think the learned Judge must have had in his mind when he referred to the premium being included with the rent as one payment of Rs. 800 per month, there are payments of Rs. 800 per month entered for rent, but then there is a sub-entry in each case showing Rs. 200 for rent and Rs. 100 for "pagdi" or premium. Therefore, I think that in fact the payment of the Rs. 1,200 a year was a premium and was not rent and that the cause of action for the premium arose under a different contract from the cause of action for rent. That being so, I think that Order II, Rule 2, has no application to the case and that the plaintiff was entitled to succeed in the action. I may point out that in any case there would seem to have been a slip in dismissing the action with costs, because the plaintiff was entitled to costs at any rate down to the date on which possession was delivered up by the defendant. The issue as to ejectment does not arise because admittedly the defendant had given up possession before the trial.