RADHA KISHEN Vs. IKRAM-UDDIN

JUDGEMENT

(1.) This is a defendants second appeal. It appears that the appellants ara the proprietors of a firm of military contractors. They gave a sub-contract to the plaintiff-respondent for the supply of leather goods and the arrangement between the parties was that the plaintiff should submit his bills to the defendants and the latter should realize the money from the military department and should thereafter pay it to the plaintiff, after deducting a commission of 5 per cent. On 1st November 1934 the plaintiff-respondent instituted a suit (Suit No. 725 of 1934) for recovery of a specific sum of money, amounting to Rs. 1066-10-0, which admittedly had reference to specific bills submitted by the plaintiff to the defendants. The suit was originally dismissed, but was decreed in first appeal, and the decree of the appellate Court was affirmed by this Court in second appeal on 28 March 1938.

(2.) Meanwhile on 30 August 1936 the plaintiff filed the suit out of which this second appeal has arisen for rendition of accounts in respect to the period from March 1928 to November 1933. This suit was stayed pending the decision of this Court in connexion with the second appeal which had been preferred in respect to Suit No. 725 of 1934. When that appeal was decided and the suit out of which the present appeal arises was taken up again by the trial Court, an application was made to amend the written statement by pleading the bar of Order 2, Rule 2, Civil P.C. That application was disallowed and a preliminary decree was ultimately passed. There was an appeal, and the learned Judge of the appellate Court has substantially affirmed the decree of the trial Court. The learned Judge allowed counsel for the defendants-appellants to plead the bar of Order 2, Rule 2, Civil P.C., and also the bar of res judicata under Section 11, Civil P.C., but both these pleas have been repelled by the lower appellate Court, and the point taken before me in this appeal is that the learned Judge has erred in holding that the suit was not barred either by the provisions of Order 2, Rule 2, Civil P.C., or under Section 11, Civil P.C. Rule 2(4) of Order 2 provides: 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.

(3.) Rule 2(3) provides: A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs he shall not afterwards sue for any relief so omitted.