L RAMSARUP Vs. LPEARE LAL

JUDGEMENT

(1.) This is an application in revision by the defendants arising out of a suit brought on an instalment bond for Rs. 5,000 payable in 10 yeans. The bond contained a provision that half yearly instalments of Rs. 250 would to paid and on default of payment of any two instalments, the whole amount would become payable, and the creditors would be at liberty to sue for the entire amount. Defaults were made for 5 instalments, and a suit for recovery of these instalments, was filed in 1933. In the plaint the creditors expressly mentioned that they were abandoning their right to recover the whole amount in a lump sum and that in future they would sue for the future instalments as they fell due. This suit was decreed. Later on they brought another suit for recovery of one further instalment when it fell due, and it was ultimately withdrawn on condition of the plaintiff's paying the costs of the defendants. The plaint was returned to the plaintiffs, although they had not deposited the defendants costs in the Court. They then brought the present suit in November 1933, for the recovery of that particular instalment. The defendants resisted the claim on two principal grounds: The first was that the present claim was barred by Order 2. Rule 2, inasmuch as in the first suit the claim for this instalment had not been included. The second plea was that the condition under which permission to withdraw the suit was granted had not been fulfilled inasmuch as the costs had not been paid to the defendants before the institution of the suit. Both these contentions have been repelled by the Court below and the claim has been decreed.

(2.) So far as the question whether the plaintiffs have or have not failed to comply with the condition, under which permission was granted, is concerned, we are of the opinion that this is a mere matter of interpretation of the order passed by the original Court, and we should not interfere in revision. The lower Court has taken into consideration the fact that the learned Munsif, who had passed the conditional order, allowed the plaint to be withdrawn, and that the order did not clearly and expressly mention that the costs must be deposited before the fresh suit is filed. In view of these considerations, he has come to the conclusion that the payment of the costs was not a condition precedent to the institution of the suit, We would not interfere with the decree of the Court below on the ground of interpretation only.

(3.) The principal point for consideration is whether the present claim is barred by Order 2. Rule 2, Civil P.C. In order to avoid multiplicity of suits the rule quoted above provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, and that where a 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.