RAMCHANDRA ADARAM AGARWALE Vs. LODHA GOURI BHADBHUNJI

JUDGEMENT

(1.) IN this case the plaintiif purchased a house on March 12, 1921. He did not get possession. Accordingly he had to file a suit on June 17, 1921, for possession, on which he got a decree for possession and rent from the date of the suit. He then filed the present suit in the Small Cause Court to recover rent for the house prior to the date of the suit. The Judge held that the suit was barred by the previous suit, and accordingly dismissed it. It seems to us that he has missed the real point in the case which does not fall under Section 11, Explanation IV, of the Civil Procedure Code, but under the provisions of Order II. If the claim for possession and the claim for rent prior to the suit for possession are separate causes of action, there is no obligation on the plaintiff to join these two causes of action in the same suit. It is only under the provisions of Order II, Rule 4, that it is possible for a party seeking Civil Extraordinary Application No. 175 of 1923, from an order pass by E.F. Rego, Judge of the Court of Small Causes, at Poona, in Small Cause Suit No. 4338 of 1922 possession to join in that suit a claim for mesne profits prior to the suit. IN Ponnammal. Ramamirda Aiyar (1014) I.L.R. 38 Mad. 829, F.B., the same point arose, and it was held following a series of authorities that:- Where a plaintiff sued for possession of lands only when he might have joined in the same action claims for mesre profits and damages, it was open to him to bring a subsaquent suit against the same defendants for the profits which became payable before the institntio of the former suit and which might have been included in such suit;.

(2.) WE agree with that decision. Accordingly we must make the rule absolute and remand the suit for trial on the merits. The applicant will be entitled, to the costs of the rule. Costs in the lower Court will be costs in the cause.