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TMI Blog1974 (4) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 1952, Shri Harinarain Rathi however desires to continue it. The following arrangement has therefore been agreed: (a) That a balance-sheet exhibiting the ' affairs of the business as on 30th September may be drawn up and signed by the partners in token of their acceptance. (b) That Shri Shivballabh Mandhana should agree to leave with Shri Harinarain Rath; assets and stock-in-trade amounting to ₹ 12,500 where with to carry on the business. This amount should be in addition to the liabilities of the partnership business as mentioned in the balance-sheet as on 30th September, 1952. (c) That the stock-in-trade remaining in the partnership business shall be deposited with Shivballabhji Mandhana and removed as and when required against cash payment A store-keeper shall be kept in charge of this stock by Shivballabh Mandhana who will be paid by Harinarain Rathi. The salary shall not exceed ₹ 100. Interest on this sum shall be paid by Harinarain Rathi at ₹ 9% per annum monthly. (d) Interest at ₹ 9/-% per annum shall also be paid by Shri Harinarain Rathi on account of ₹ 12500 vide item (b) above and also on the amount due by him to Shivballabh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-trade deposited with Shiv-ballabh were sold to Harinarain. The assets and stock-in-trade deposited with Shivballabh remained in the custody of Vishnuswaroop who was appointed as store-keeper. It is said that Vishnuswaroop allowed Harinarain ta take away the whole of the assets without making any payment. On failure of Harinarain to repay the various amounts due from as per terms of the deed of dissolution, Shivballabh instituted three suits on 28-9-55 in the Court of the Additional District Judge No. 1, Jaipur City. The first suit related to the recovery of ₹ 13272/15/6, the amount of loss in the partnership business. The second suit related to the recovery of ₹ 17280/4/6, the value of the assets deposited with Shivballabh and subsequently removed by Harinarain. The third suit is the suit out of which this appeal arises. It relates to the recovery of ₹ 12,500 with interest thereon as also the interest on the amount of ₹ 17280/4/0. The details of the amount claimed by the plaintiffs in this suit are as under: 1. Amount of stock-in-trade left with defendant Harinarain Rs. 12500 2. Interest on the above amount @ 9% per annum plus interest on the sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 7712/-. It is against this decree that the defendants have preferred this appeal. 4. The plaintiff-respondents have filed cross-objections with the prayer that the decretal amount be enhanced by ₹ 4788/-. I first take up the appeal filed by the defendants. Arguing the appeal, Mr. P. C. Bhan-dari, the learned advocate for the appellants, restricted his arguments to the following points only: 1. That the plaintiffs have failed to prove the will dated 17-11-58 in accordance with law. 2. That the suit was not maintainable on account of splitting of cause of action. 3. That there is no reliable proof that the assets and stock-in-trade worth ₹ 12,500 were handed over to defendant Harinarain. During the course of the hearing of this appeal, the plaintiff-respondents produced the copy of the probate dated 15-11-61 granted in their favour by the Court of District Judge, Jaipur District, Jaipur, in exercise of its probate jurisdiction in respect of the will dated 17-11-58 executed by Shivballabh. The probate was admitted in evidence by the order of this Court dated 9-1-74 under Order 41, Rule 27, C. P. C. The defendant-appellants were then given an opportu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court, (2) Relinquishment of part of claim.--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. (3) Omission to sue for one of several reliefs.-- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation.-- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. All that Order 2, Rule 2 provides is that where there is one and the same cause of action, the plaintiff cannot split up his cause of action and sue for one part in one suit and for another part in another suit. As their Lordships of the Privy Council put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is reason that we consider that a plea of a bar under Order 2, Rule 2, C. P. C. can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits.....Just as in tha case of a plea of res judicata which cannot be established in the absence on the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under Order 2, Rule 2, C. P. C. cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of me cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. It is not impossible that reliefs were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in the order which the numbers indicate. The argument deducible from the numbering of the suits is quite inconclusive, the plaints may (for all we know) have been presented together or possibly in the reverse order to that indicated by the numbers. In Murti v. Bholaram ILR (1894) 16 All 165, A Full Bench of the Allahabad High Court laid down that where two suits are filed on the same day it must be presumed until the contrary is proved, that they were presented and admitted in the order in which their numbers appear in the Register of Civil Suits. This Fun Bench decision was later on followed by the Rangoon High Court in The Standard Electric and Motor Works v. Picture Palace AIR 1924 Ran 161 in preference to Lala Sewaram's case (supra). The Madras High Court in Rayalu Ayyar v. Ramudu Ayyar, AIR 1926 Mad 934, dissented from the view taken by the Allahabad High Court in Murti's case (supra) and held that where two suits are filed simultaneously on the same day, the plaintiff may elect as to which of the two suits instituted by him together shall be held barred by the operation of Order 2, Rule 2, C. P. C. The relevant observations run as follows:-- The Allahabad c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would open the door to deliberate and continual evasion of the law. For instance, if A buys on the same occasion seven different articles from B in B's shop, B might file on the same day seven suits against A in respect of the price of the seven articles sold which, it is said, would be absurd. I am by no means satisfied, however, that this argument ab inconvenient really makes it necessary to strain the language of the rule and to assume contrary to the fact that one of two plaints presented simultaneously has been presented afterwards. The Madras High Court has declined to make this assumption (49 Mad 869), but apparently it thought it necessary nevertheless to assume that one or the other of the suits was instituted afterwards and so the expedient was adopted of giving the plaintiff the option of electing which of the suits should be regarded as the earlier. It is obvious that either of these purely arbitrary methods of procedure may cause great injustice. That would no doubt be irrelevant if there were no other way of preventing evasion of the rule that a suit must include all claims arising out of the same cause of action. But I think that is not so. In the hypothetic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f dissolution gave rise to several causes of action and it was not necessary for the plaintiffs to include all the causes of action in one suit. The first suit related to the recovery of the amount of loss suffer-red by the defendant Harinarain. The second suit related to the recovery of the price of assets and stock in trade which were unauthorisedly handed over by the store-keeper to the defendant Harinarain. The present suit related to the price of the assets and stock-in-trade handed over to Harinarain and for the repayment of which Harishchander stood surety. It is however contended on behalf of the appellants that the suit for recovery of interest on the sum of ₹ 17280/4/6 relating to the assets and stock-in-trade alleged to have been unauthorisedly handed over to Harinarain by Vishnu Swaroop ought to have been included in that suit and the present suit so far as it relates to the recovery of interest on that amount is barred under Order 2, Rule 2. The contention is without any merits in view of the foregoing discussion. That apart, the suit for recovery of ₹ 17280/4/6 was based on the tort committed by Vishnuswaroop and Harinarain arid not on the deed of dissolut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of interest and then, after it is satisfied, in payment of the principal amount of ₹ 12,500/-. Even apart from the agreement, the general rule is that in absence of any appropriation by the debtor at the time of payment, the payments should be attributed in the first instance to interest. It is not the case of the defendants that they at the time of making payment of ₹ 400 every month, gave direction for appropriation of the amount towards the principal amount of ₹ 12,500. The plaintiffs, therefore, were entitled to apply the payment first towards interest accrued upto the date of payment and the balance towards the principal. Calculating in the above manner, the amount due to the plaintiffs up to the date of the suit comes to ₹ 10301.68 as principal and ₹ 4755.81 by way of interest, total ₹ 15,057.49. Since the plaintiffs relinquished ₹ 39.18, they are entitled to a decree for ₹ 15,018.31. 10. In the result, the appeal filed by the defendants is dismissed with costs. The cross-objection filed by the plaintiffs is allowed, the decree of the Court below is modified and the decretal amount is enhanced from ₹ 10,993.25 to &# ..... X X X X Extracts X X X X X X X X Extracts X X X X
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