SHANKAR VASUDEO THITE Vs. DATTATRAYA VISHNU SARDESHMUKH

JUDGEMENT

(1.) In this case the plaintiff sued to recover from defendants possession of the plaint property with mesne profits and costs of suit. The properties involved in the suit are (a) one house No. 1469; (b) Shirdhon lands, four in number; and (c) Gurasla lands, five in number.

(2.) The only point argued in this appeal is whether the present suit is barred under Order II, Rule 2. In December 1915 Narayan the maternal grandfather of the present plaintiff filed a complaint with regard to the theft of some ornaments. Narayan died on March 31, 1916, and on November 9, 1916 the Magistrate passed an order requiring the person entitled to the property to establish his claim in a civil Court before November 21, 1916. On November 13, 1916, the present plaintiff brought a suit against the present defendants to establish his right with regard to four ornaments which were alleged to have been stolen and which formed the subject-matter of the order of the Magistrate. The plaintiff succeeded, It is urged that the plaintiff having omitted to sue for the house and the lands situated at Shirdhon and Gursala in the previous suit, he is barred by Order II, Rule 2, from bringing the present suit. Both the lower Courts held that the suit was not barred under Order II, Rule 2.

(3.) It is argued on behalf of the appellant that the cause of action in both the suits is the same and reliance is placed on the cases of Kashinath Ramchandra v. Nathoo Keehav (1914) I.L.R. 38 Bom. 444, s. c. 16 Bom. L.R. 454 and Sonu valad Khushal V/s. Bahimbai (1915) I.L.R. 40 Bom. 351, s. c. Bom. L.R. 45 and it is urged that the cause of action means every fact which the plaintiff has to prove in order to succeed, and that the test is whether the evidence in the two suits is the same, in order to determine whether the cause of action is the same in both the suits. The question 1929 of title, it is said, would have to be proved in both the suits and the evidence would be the same. According to the decision Muhammad Umar Khan V/s. Ummatul Rahim Bibi (1923) I.L.R. 45 All 376 and the Dattatbaia pull bench decision in Murti V/s. Bhola Ram (1893) I.L.R. 16 All 165, F.B. the cause of action. is defined as consisting of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. One valuable test laid down in the case of 8onu valad Khushal V/s. Bahinibai in considering whether the causes of action are identical is whether the evidence which would suffice to enable the plaintiff to obtain a decree in both the suits is the same. In Muasummat Ohand Kour V/s. Partab Singh (1888) L.R. 15 I.A. 156 it was held that the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff and refers entirely to the grounds set forth in the plaint as the cause of action or in other words to the media upon which the plaintiff asks the Court to arrive at a conclusion. In DeSouza V/s. Coles (1858) 3 M.H.C.R. 384, 406 Holloway J. hold that the cause of action may have either the restricted sense of immediate occasion of the action or the wider sense of necessary condition of its maintenance and that the right resident in the plaintiff and the infraction of it by the defendant is the cause of action. It was held in Rajah of Pittapur V/s. Sri Rajah Venkatm Mahipati Surya (1885) L.R. 12 I.A. 116 that Section 7 of Act VIII of 1859 which corresponds to Order II, Rule 2, does not say that every suit shall include every cause of action or every claim which the party has, but every suit shall include the whole of the claim arising out of the cause of action -meaning the cause of action for which the suit is brought. In that case, the plaintiff first sued to recover immovable property in consequence of having been improperly turned out of possession and afterwards brought a suit to recover from the same defendant movable property in consequence of its wrongful detention. It was held that the claim in respect of the personally was not a claim arising out of the cause of action which existed in consequence of the defendants having improperly turned the plaintiffs out of possession. It was a distinct cause of action altogether, and did not arise at all out of the other. In the ease of Muhammad Hafiz V/s. Muhammad Zakariya (1921) L.R. 49 I.A. 9,15, s. c. 24 Bom. L.R. 341 their Lordships of the Privy Council held that the cause of action is the cause of action which gives occasion for and forms the found- action of the suit. In the present case the Magistrate ordered, on November 9, 1916, that the person who was entitled to the our ornaments should bring a suit before November 21, 1916. The plaintiff, therefore, in the previous case had to establish, first, that the property belonged to Narayan, and that during his lifetime there was a theft of the ornaments in December 1915, After the death of Narayan on March 31, 1916, the Magistrate ordered that the person who was entitled to the property should establish his right to the ornaments and in pursuance of that order the plaintiff claimed under the will of Narayan and brought a suit to establish his right, The evidence regarding the alleged theft and the criminal proceedings culminating in the order of the Magistrate would be irrelevant in the present case. In the previous suit the property was in possession of the Magistrate and it was the denial of the right of the plaintiff coupled with the order of the Magistrate that furnished the cause of action for the suit. In the present case he cause of action is quite different. It was not merely the denial of title but the obstruction of the defendants which necessitated the bringing of the present suit. The immediate cause of action in the previous suit was the order of the Magistrate and the immediate cause of action in the present suit is the wrongful withholding and obstruction by the defendants. We think that the causes of action in the two suits are different and the view taken by both the Courts is correct. It is unnecessary to go into the other question argued before us as to whether in case the suit is barred under Order II, Rule 2, defendant No. 2 is entitled to the whole property involved in the suit or only to a portion of the property. We must, therefore, dismiss the appeal with costs.