GIRDHARI LAL Vs. KHARE PRASAD

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for profits which has been dismissed on account of the provisions of Order 2, Rule 2, Civil Procedure Code.

(2.) On the 1 of August 1916, the plaintiffs first instituted a suit for arrears of profits for the years 1321 and 1322 Faslis. That suit was decreed and we are not now concerned with its merits. Subsequent to the fir August, 1916, the present suit was instituted for arrears of profits for the year 1323 Fasli. The plaintiffs themselves in the plaint alleged their cause of action to have arisen on the 1 of August 1916. The Courts below have held that, as the right to sue had accrued on the 1 of August 1916, it was the duty of the plaintiff to include their present claim in the previous claim, and that they, not having done so, have rendered their subsequent suit liable to be dismissed under Order 2, Rule 2, Civil Procedure Code.

(3.) Under the fourth schedule, group (b), of the Agra Tenancy Act, the time from which limitation begins to run for a suit for arrears of profits is "when the share of the profits becomes payable." Under Section 163 of the Act, profits are divisible on dates notified by the Local Government. In the present case it is not disputed that the date so notified was the 1 of August 1916, and that the profits for the year 1323 Fasli became divisible on the 1 of August 1916. But the learned vakil for the plaintiffs contends that inasmuch as it would have been open to the lambardar to pay up the profits in the course of the day, in fact, up till the end of that day, the plaintiffs right to sue had not accrued on that day, and that it must be deemed to have accrued on the second day, namely, the 2 August, 1916. It is impossible to accept this contention. All that we have to consider is the date when the profits became payable or when they became divisible. As soon as the 1 of August 1916 commenced the profits became divisible. It must, therefore, be held that they became divisible even in the early party of the morning. Had the plaintiffs brought a suit for the year 1323 Fasli, on the 1 of August 1916, it would have been impossible to throw it out on the ground that it was premature. It is clear, therefore, that they, could very easily have included the present claim in the former claim and they not having done so, have rendered their suit liable to be dismissed on the technical ground of Order 2, Rule 2, Criminal Procedure Code. The result therefore is that we dismiss the appeal under Order 41, Rule 11, Civil Procedure Code.