RAM CHANDAR Vs. BENI RAM

JUDGEMENT

(1.) This appeal arises out of a suit brought under the following circumstances. There were commercial dealings between the plaintiff and the defendants. In October, 1909, a balance was struck, and it was found that Rs. 4,000 odd were due by the defendants to the plaintiff, An arrangement was come to by -which the defendants agreed to pay off this sum by monthly payments of Rs. 50. Certain instalments were paid in pursuance of this arrangement and were duly credited to the defendants in the books of the plaintiff. Later on the plaintiff asked the defendants if they would accept a hundi for Rs. 500 if the plaintiff drow the same upon them and that the plaintiff would credit the defendants with the Rs. 500 in the books being the amount of the hundi. The defendants agreed to this. The plaintiff drew the hundi, the defendants accepted it but did not pay the amount on due date. The plaintiff had to pay the holder of the hundi and then brought a suit against the defendants for the Rs. 500. This suit failed. It is said that the defendants succeeded in getting the court to hold that their acceptance was forged and this matter need not be considered. All the facts stated above must be assumed for the purpose of the present appeal. The plaintiff has now instituted the present suit to recover the balance due by the defendants on their account. The defendants meet the suit with an objection based on order II, Rule 2, which is as follows Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. "Where plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished." A person entitled to more than one relief in respect of the same cause of 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 relief so omitted." "Explanation.-- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same-obligation shall be deemed respectively to constitute but one cause of action.

(2.) It is contended by the defendants that the hundi mentioned above was a collateral security for the payment of money due on the accounts, and that it must be deemed to constitute the same cause of action.

(3.) In our opinion when the plaintiff sued alleging that the defendants had not paid the hundi which they executed, their cause of action was a totally different cause of action from the present one. The only connection between the two suits was that the consideration for the alleged acceptance by the defendants of the hundi was the discharge of the debt to the extent of Rs.500.