AGUSTUS BROTHERS Vs. MAFERNANDEZ

JUDGEMENT

(1.) The facts which have led to this reference by the Subordinate Judge of Cochin in a Small Cause Suit in his Court, might be shortly stated thus: The defendant made purchases from the plaintiff s shop for small sums from time to time till 26th May 1912, made part payments and had to pay Rs. 88-7-0 as balance on such purchases. The suit was brought in September 1913 for the recovery of this Rs. 88-7-0 and interest. The plaintiff had, at the end of 1912, brought a suit in the Village Munsifs Court of Cochin for the recovery of Rs. 2-4-0, being the price of one bottle of whisky purchased by the defendant in April 1912, this item of Rs. 2-4-0 being one of the several items of accourt in respect of the purchases made by the defendant up to the 26th May 1912.

(2.) The lower Court has made this reference assuming that, if the first suit had been brought in an ordinary Civil Court instead of in the Court of the Village Munsif, Order II, Rule 2, corresponding to old Section 43 of the Civil Procedure Code, would be a bar to the present suit. Order II, Rule 2, says (omitting portions unnecessary for this case); "Every suit shall include the whole claim which the plaintiff is entitled to make in respect of the cause of action.... Where a plaintiff omits to sue in respect of, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted."

(3.) I am not at all sure that where a customer makes distinct purchases on distinct dates, the merchant has not got a distinct cause of action in respect of each purchase or set of purchases. In Beni Ram v. Ram Chandra 26 Ind. Cas. 302 : 36 A. 560 : 12 A.L.J. 959, it was held doubting the decision in Preonath Mukerji v. Bishnath Prasad 29 A. 256 : A.W.N. (1907) 41 : 4 A.L.J. 85, that when a debtor gave a hundi for Rs. 500 out of a debt of Rs. 4,000 and odd, and the creditor first brought a suit on the hundi, he was not precluded from maintaining a second suit for the balance due on account by reason of Order II, Rule 2. In the case Preonath Mukerji v. Bishnath Prasad 29 A. 256 : A.W.N. (1907) 41 : 4 A.L.J. 85 the soundness of the decision in which, was doubted in Beni Ram v. Ram Chandra 26 Ind. Cas. 209 : 41 C. 825 the Court held that where a doctor got a promissory note for Rs. 700 for seven days fees and continued to attend on the patient for six days more and then first brought a suit on the promissory note and recovered Rs. 700, he was barred by Section 43 [Order II, Rule (2)] from bringing a suit for the Rs. 600 due for the attendance during the remaining six days. In Mandal & Co. v. Fazul 26 Ind. Cas. 209 : 41 C. 825, Jenkins, C.J., and Woodroffe, J., held that though the contract between the parties was contained in one and the same writing, if that writing expressly said that it related to two separate contracts (one relating to the delivery of cases of candles to be shipped in July 1908 and the other to the delivery of cases of candles to be shipped in August 1908), two separate suits can be maintained. I am aware that a merchant does not usually bring numerous separate suits against the same customer, each suit for the amount due on each purchase transaction. But that is because he is entitled under Order II, Rule 3, Civil Procedure Code to unite in the same suit several causes of action against the same defendant unless prohibited by Rules 4 and 5 of Order II. Order II, Rule 2, prohibits only the splitting of claims arising out of the same cause of action and if the cause of action in respect of purchase for Rs. 2 4-0 was different from the other causes of action in respect of other purchases and if there was no agreement (or settlement of accounts) between the parties which consolidated all these separate causes of action into one cause of action, I think that Order II, Rule 2, has no application and this reference is, therefore, incompetent.