9911796707
TMI Blog1976 (11) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... ision, filed a suit against him in the Court of the Munsif South, Lucknow (Regular Suit No. 354 of 1969). In that suit he claimed a decree for arrears of rent and mesne profits without claiming ejectment of the defendant Sardar Balbir Singh. In Para. 5 of the plaint the plaintiff specifically reserved his right to file a suit for ejectment of the tenant and on 23-7-1969 he moved an application for leave of the court for filing a suit for ejectment subsequently. On 24-7-1969 the court granted this permission to file another suit subsequently for ejectment of the applicant-tenant. 3. While the earlier suit was pending the landlord-opposite party filed a second suit on 3-2-1970 against the applicant in the Court of Munsif South, Lucknow, (Suit No. 90 of 1970) praying for ejectment and mesne profits which arose subsequent to the filing of the first suit. The plaint of the suit was returned and was eventually filed in the court of the District Judge, Lucknow, as the Munsif lacked pecuniary jurisdiction end was registered there as Suit No. 16 of 1973. In the second suit the landlord claimed a decree for ejectment and mesne profits which accrued subsequent to the earlier suit. Suit No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or damages for breach of any contract under which the property or any part thereof is held; and (c) claims in which the relief sought is based on the same cause of action; Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property. 6. The contention for the opposite party-plaintiff is that the second suit was not barred by Order 2, Rule 2, as he had omitted to claim the relief of ejectment in the first suit with the leave of court and was permitted by the court to sue for ejectment afterwards. The main submission, therefore, is that having regard to Sub-rule (3) of Order 2, Rule 2, the second suit is not barred for omission of a relief for ejectment in the earlier suit Alternatively, it is submitted that the bar of Order 2, Rule 2, applies only where the relief claimed in the subsequent suit and the relief claimed in the earlier suit arise from the same cause of action but Order 2, Rule 4, shows that the cause of action for a suit for recovery of immovable property or possession is not the same as the cause of action for mesne profits or arrears of rent in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectment with the leave of the court. This being the proved and admitted position the second suit was not barred by Order 2, Rule 2, having regard to the provision contained in Order 2, Rule 2 (3) of the Civil Procedure Code for omission to sue for ejectment in the first suit, which was confined only to mesne profits and the question referred to this Court must, on that view of the matter, stand answered without any hesitation in the affirmative. The second and the alternative case argued for the opposite party, however, does not admit of such easy disposal as the terms of Order 2, Rule 4, do not, to my mind, embody an exception to what is laid down in Order 2, Rule 2, of the Civil Procedure Code and do not warrant a wide and sweeping generalisation that the claims for mesne profits and for possession or ejectment from immovable property on the basis of a contract of lease must always and invariably spring from a distinct and separate cause of action. 7. The plaintiff-opposite party relies on the following authorities:-- 1. Ponnammal v. Ramamirda Ayyar ILR Mad 829 : AIR 1915 Mad 912 (FB). 2. Shankerlal Laxminarayan Rathi v. Gangabisen Maniklal Sikchi AIR 1972 Bom 326. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of action for damages for breach of any contract under which the property or any part thereof is held. Having made these observations in para. 22 the Court made the following observations in para. 24 which are pertinent to the present discussion and may be extracted: We cannot read Order 2, Rule 4 as entirely divorced from Order 2. Rule 2. No doubt Order 2, Rule 4 is an exception to Order 2, Rule 3 but it does not, therefore, follow that it has nothing to do with Order 2. Rule 2 ............ Thus Order 2, Rule 2, deals with one and the same cause of action. Order 2, Rule 3; on the other hand, deals with several causes of action and makes the contrary provision. It permits the plaintiff to unite several causes of action in one suit under certain circumstances. Where Order 2, Rule 2, deals with the same cause of action and prohibits its splitting, Order 2, Rule 3, provides for the joinder of several causes of action. Therefore, inter alia they deal with two different aspects of the same subject viz., joinder of causes of action. Now, no doubt an exception to Order 2, Rules 2 and 3 is created by Order 2, Rule 4. Its opening part says that no cause of action shall be joined wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, should be read as an exception to Order 2, Rule 2. The learned Judge was quite clearly led to this conclusion, as appears from the reasoning in para. 24 of the report, by the opening words of Order 2, Rule 4, which enjoined that no cause of action shall be joined with a suit for the recovery of immovable property. If Order 2. Rule 4, said this and no more then undoubtedly it could be regarded as an exception to Order 2, Rules 2 (1) and 2 (3), but it provides further that the cause of action for the recovery of immovable property can be joined (a) with claims for mesne profits or arrears of rent; (b) with claims for damages for breach of contract and (c) with claims in which the relief sought is based on the same cause of action. In making the above observations and in its final conclusion that the cause of action for mesne profits and damages and the cause of action for recovery of immovable property are distinct and separate the Bombay High Court did not weigh the implication of Clause (c) of Order 2, Rule 4, which permitted joinder of claims in respect of relief based on the same cause of action with a cause of action for recovery of immovable property. Order 2, Rule 2 (1), en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, Rule 2, of the Civil Procedure Code. On the other hand, Order 2, Rule 4, is an enabling provision or may be treated as an explanation to Order 2, Rule 2, in that it permits the joinder of certain causes of action enumerated in Clauses (a), (b) and (c) of that Rule with a suit for recovery of immovable property, 9. In the case of Sadhu Singh v. Pritam Singh, a Full Bench of the Punjab and Haryana High Court, Gujral, J., in a separate judgment observed in para, 48 of the report: It (Order 2, Rule 4) does not necessarily carry an implication that a claim for mesne profits and a claim for possession of immovable property amount to separate and distinct causes of action, Having regard to the language of Clause (c) of Rule 4 of Order 2 it can be plausibly urged that Clauses (a) and (c) are not really exceptions but are merely explanations of the rule embodied in Rule 2 of Order 2. With this view I find myself in respectful agreement. 10. There is nothing in the language of Order 2, Rule 4, to imply that a claim for recovery of immovable property and a claim for mesne profits or arrears of rent in respect of the same property shall be deemed to arise out of distinct cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase as 'save as otherwise provided', the words which occur in Rule 3 of Order 2, This is also an indication that Order 2, Rule 2, was not intended to be subject to Order 2, Rule 4. That being so, the rule of harmonious construction must be applied to the interpretation of Order 2, Rule 4. Inevitably, this approach also leads to the conclusion that Order 2, Rule 4, permits the joinder of such claims with a claim for recovery of immovable property as arise from the same cause of action and such claims which arise from distinct causes of action can be joined with a suit for the recovery of immovable property only with the leave of Court. 12. Here it is relevant to set out the historical back-drop as it forms almost the sole basis for the Bombay High Court decision in Shankerlal v. Gangabisen AIR 1972 Bom 326 (supra) and those of the Madras, Calcutta, Patna, Andhra Pradesh, Madhya Pradesh, Peshawar and Punjab High Courts that the claims for possession of the immovable property and for mesne profits or damages are based on distinct causes of action. It is well known that the earlier Indian Civil Procedure Codes were modelled on the language and pattern of the then existing En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 1882. The changed form in which Order 2, Rule 4, was enacted can best be appreciated when placed in juxtaposition with Section 44 of the old Codes: Section 44, Rule a, -- No cause of action shall unless with the leave of the court, be joined with a suit for the recovery of immovable property, or to obtain a declaration of title to immovable property, except-- (a) claims in respect of mesne profits or arrears of rent in respect of the property claimed. (b) damages for breach of any contract under which the property or any part thereof is held, and (c) claims by a mortgagee to enforce any of his remedies under the mortgage. Rule b. -- No claim by or against an executor, administrator or heir as such, shall be joined with claims by or against him personally, unless the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor, administrator or heir. Order 2, Rule 4. -- No cause of action shall, unless with the leave of the court, be joined with a suit for the recovery of immovable property, except (a) claims for mesne profits or arrears of rent in respect of the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. But the intention which should have been expressed in Section 44 Rule (a) was that claims for mesne profits, rent or damages arising from the same cause of action were not within the rule. It is the aforesaid criticism of the Privy Council in Ganesh Dutt v. Jewach ILR (1904) Cal 262 (PC) (supra) that appears patently to have led to the new Clause (c) of Order 2, Rule 4 and this clause provides an unmistakable pointer to the legislative intent, if ever there was need for one, that claims for mesne profits, rent or damages and claims for recovery of immovable property, if they arise from the same cause of action, could be joined in the same suit, thereby removing permanently the doubt that such claims, by reason of Order 2, Rule 4, should be deemed to be based on different causes of action. The same legislative intention was expressed also by dropping of Section 10 from the Codes of 1877 and 1882 and the absence of an analogous provision in Order 2 of the Code of 1908. 18. Section 43 of the old Codes and Order 2, Rule 3 permitted the joinder of several causes of action in the same suit against the same defendant or defendants. It seems to have been realised that such a wide pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t were necessary to go as far as that, we would say that the law has read that fiction of Section 10 of the Code of 1859 into Order 2, Rule 4, This, to my mind, is the basic error in approach in the case of Shankerlal v. Gangabisen (supra). There was no warrant in the language of Order 2, Rule 4, or in any other provision of Order 2 to justify the assumption that a suit for recovery of immovable property and a claim for mesne profits or damages are separate and distinct causes of action. In fact there was a clear indication when Section 10 of the Code of 1859 was dropped from the Codes of 1877 and 1882 that the Legislature did not intend any more to continue the legal fiction which was incorporated in Section 10 and by which claims for recovery of immovable property and claims for mesne profits and damages were deemed to be distinct causes of action. The intention of the Legislature must be deduced from the plain language of the Statute and it is not permissible to do so from any postulates or assumptions. Such a deduction is permissible only from an unequivocal provision in the Statute. That, however, is not the case here since after dropping of Section 10, Order 2, Rule 2, do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to whether the claim for arrears of rent or mesne profits and a claim for ejectment arising from the contract of lease were based on the same or distinct causes of action. 20. Before proceeding to examine the other authorities relied upon by the opposite party I would first like to refer to the cases which have taken the view that the claim for mesne profits or arrears of rent and the claim for ejectment based on a contract of lease arise out of the same cause of action and it is these cases which are directly in point. 21. In the case of Lalji Mal v. Hulasi ILR (1881) All 660 (FB) under the terms of a mortgage the mortgagee was entitled to enter into possession of the mortgaged property. The mortgagor refused to deliver possession; whereupon the mortgagee sued him for possession on the basis of contract. After the decree he filed another suit against the mortgagor to recover the mesne profits of the estate which had accrued in the period prior to institution of the first suit. The second suit was defended on the ground that it was barred by Section 43 of the Code of 1877, which was analogous to Order 2, Rule 2. The argument on behalf of the mortgagee was that the causes of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tituting 'the whole claim the plaintiffs were entitled to make in respect of the cause of action' on which the suit was instituted in August, 1878. 22. In a nutshell the decision in the case of Lalji Mal was that claims for ejectment or possession and for mesne profits arising out of breach of contract are based on the same cause of action and not distinct causes of action. The possibility that there may be some cases in which a claim for mesne profits may amount to a cause of action distinct from that on which a suit for recovery of immovable property as contemplated by Section 44 is based was not overruled. But there was unequivocal decision that this was not so when the cause of action for mesne profits and ejectment or possession arose out of breach of contract as in the instant case. 23. In Mewa Kuar v. Banarsi Prasad ILR (1895) All 533 the plaintiff sued for ejectment upon forfeiture and also for rent in respect of the same property up to the date of alleged forfeiture, Having obtained a decree he subsequently brought a separate suit for mesne profits including the period from the date of forfeiture to the date of institution of the former suit. It was held, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the land on the basis of the lease and obtained a decree for possession in August, 1876. In 1879 he brought a second suit against the defendant for damages according to the terms of the lease for the year 1283 F. for which he obtained a decree. Again in 1880 he brought another suit for damages sustained owing to his being kept out of possession for the years 1284, 1285 and 1286 F. The claim in the suit was resisted on the ground that it was barred by Section 43 of Act 10 of 1877. The High Court held that the claim for mesne profits for 1284 and 1285 F. was barred by Section 43 as the same arose out of the same cause of action but the claim for future mesne profits i.e., for 1286 F. was not barred. This judgment of the High Court was upheld by the Privy Council. 27. In the case of Ganeshi Lal v. Bansi Dhar AIR 1933 All 84 the plaintiff took a mortgage of certain house from the defendant. In order to secure payment of interest due under the mortgage he leased back the house to the mortgagor with the stipulation that if there was a default in the payment of interest for three years consecutively, the mortgagee was entitled to evict the mortgagor. The rent not having been paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Civil Procedure Code. 30. This long line of decisions commencing from the Full Bench decision in Lalji Mal v. Hulasi ILR (1881) All 660 (FB) (supra) and Mewa Kaur v. Banarsi Prasad ILR (1895) All 533 (supra) has consistently taken the view that the cause of action for a claim for possession of immovable property by eviction of the defendant on the basis of contract of lease and a claim for past arrears of rent or mesne profits arise out of the same cause of action and not distinct causes of action. In my judgment the majority decision of the Full Bench of the Bombay High Court in the case of Shankerlal v. Gangabisen AIR 1972 Bom 326 (supra) in so far as it laid down a general proposition that claims for mesne profits and for possession of immovable property having regard to the language of Order 2, Rule 4 of the Civil Procedure Code arise from separate and distinct causes of action does not contain a correct statement of law and is no authority for a case in which the plaintiff brought a suit for arrears of rent and for ejectment or possession of immovable property by defendant's eviction on a contract of lease. Such a suit must be decided with reference to the ratio of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and the terms of Section 10 of the Code of 1859 which expressly provided that claims for mesne profits and for recovery of possession of immovable property shall be deemed to be distinct causes of action. The Full Bench in the case of Kishori Lal Roy referred to the rule of the old Sadar Court dated 15-6-1849 which expressly permitted a claim for recovery of immovable property to be made in a subsequent suit after claim for mesne profits had been decreed in an earlier suit. By this rule of 15-6-1849 the old Sadar Court of Calcutta cancelled an earlier rule contained in para. 6 of Circular Order No. 29 of 11-6-1839 which enjoined that in action for real property mesne profits shall be included in the amount at which the suit is laid. In the case of Lalessor Babui ILR(1892) Cal 615 (supra) the court erroneously took the view that there had been no alteration of the law in this respect between Section 10 of Act No. 8 of 1859 and the Code of 1882. In this remark and in following the case of Kishori Lal Roy v. Sharut Chunder Mazumdar (supra) the learned Judges slurred over the fact that Section 10 had been dropped in the subsequent Codes of 1877 and 1882 and, therefore, the decision i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure from the Legislative intent and that these two claims must always continue to be treated as separate under the subsequent codes including the Code of 1908. This is an interpretation, to my mind, wholly unacceptable for reasons already detailed. Besides reliance in the case of Ponnamal was placed on an earlier Madras case Tirupati v Narasimha ILR(1888) Mad 210. No reasoning was given in the judgment of that case for the view that the causes of action for claims for mesne profits and possession are distinct and separate and the only basis appears to be the decision of the Calcutta High Court in the case of Monohur Lall v. Gouri Sunkur ILR(1883) Cal 283. That case was decided with reference to Act No. 8 of 1859 which contained Section 10 and yet their Lordships deciding Tirupati's case did not take note of the fact that in the Code of 1877 Section 10 had been dropped and remarked: We do not consider that the difference in the language of Section 43 of the present Act and Sections 7, 9 and 10 of Act VIII of 1859 warrants the appellant's contention. What is more surprising is that in ILR(1888) Mad 210 no reference was made to the earlier decision of the same Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d distinctly recognises that the cause of action for ejectment is distinct from the cause of action for mesne profits. ...... are no better than obiter and for this obiter reliance was placed on Ponnamal v. Ramamirda Aiyar ILR Mad 829 : AIR 1915 Mad 912 (FB). To this extent it takes a view contrary to the view of the Allahabad High Court in the case of Lalji Mal v. Hulasi ILR (1881) All 660 (FB) (supra). This is not, therefore, an, authority for the proposition canvassed for the opposite party. 36-A. In the case of Sris Chandra v. Joyramdanga Coal Concern AIR 1942 Cal 40 the Calcutta High Court held that claims for possession, mesne profits and arrears of royalty are separate and distinct causes of action. This decision was based on the case of Lalessor Babui v. Janki Bibi ILR(1892) Cal 615 (supra), which for reasons already set out cannot be said to have been correctly decided. 37. Reliance was next placed on a Full Bench case; Sadhu Singh v. Pritam Singh. The majority judgment delivered by Sandha-walia, J., took the view that the causes of action for possession of immovable property and mesne profits were distinct and a subsequent suit for mesne profits was not barred b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yana High Court in the aforesaid case is an authority for the facts it dealt with and is clearly distinguishable; for the first suit in that case was filed by Pritam Singh for possession of immovable property on the basis of title on the ground of wrongful and unauthorised occupation thereof by the appellant and the second suit was filed only for recovery of mesne profits or damage for illegal use and occupation from the original date of unauthorised occupation. As the first suit was not based on a contract of lease but on title the case cannot be applied for deciding the instant case in which the suit for ejectment was based not on title but on the contract of tenancy and this Court in the cases of Lalji Mal and Mewa Kuar (supra) had decided that claims for ejectment on the basis of contract of lease and for mesne profits arise out of the same cause of action. The same view has been taken by the Calcutta High Court in the case of Sheo Shunkur Sahoya v. Hirdoy Narain ILR(1883) Cal 143, by the Privy Council in the case Madan Mohan Lal v. Lala Sheosanker Sahai (1885) ILR 12 Cal 482 (PC) and by the Patna High Court in the case of Jai Narain v. Syed Ali Murtaza AIR 1951 Pat 190. 38. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for recovery of possession of immovable property only as are based on title and have no bearing on suits for possession based on contract of tenancy or lease. This is clear from observations contained in column 1 at page 432: A suit for possession can be brought within twelve years of the date when the original dispossession took place and the cause of action for recovery of possession accrued. ............ Mesne profits accrue from day to day and the cause of action is a continuing one, and arises out of the continued misappropriation of the profits to which the plaintiff is entitled. Besides, the decision was based on the Full Bench case of the Madras High Court in Ponnammal AIR 1915 Mad 912 (FB) (supra) on which I have already recorded my comments. Further, the learned Judge did not lay down that the cause of action for recovery of possession and the cause of action for recovery of mesne profits must invariably and unnecessarily be distinct as appears from the following remarks contained in the game column. It seems to us that the cause of action for recovery of possession is not necessarily identical with the cause of action for recovery of mesne profits. Just a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ract of lease or title and a claim for recovery of future mesne profits i.e., mesne profits accruing due after institution of the suit for recovery of possession, are not based on the same cause of action but arise from distinct causes of action (see Ram Karan v. Nakchhad AIR 1931 All 429 , Madan Mohan Lal v Lala Sheosnker Sahai (1885) ILR 12 Cal 482 (PC), Sheo Shanker Sahoy v. Hridoy Narain ILR(1883) Cal 143 and Radhey Shyam v. Nanak Ram 1968 All WR 490). It is clear, therefore, that the proposition that a claim for recovery of immovable property and a claim for recovery of mesne profits or damages are always based on distinct causes of action is a proposition too sweeping and untenable in law. On the alternative submission for opposite party that the second suit is not barred by Order 2, Rule 4, as on its terms the claim for mesne profits made in the first suit and the claim for ejectment made in the second suit were not based on the same cause of action, on the authority of Lalji Mal and Mewa Kuar (supra) I hold that the claims in the two suits by the opposite party were based on the same cause of action and the second suit for ejectment would have been barred by Order 2, Rule 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it for ejectment. In case the two reliefs could be deemed to arise out of the same cause of action then also as the plaintiff had obtained leave of the court to institute a suit for ejectment subsequently, Sub-rule (3) of Rule 2 of the Order 2 of the Code of Civil Procedure which alone can be applicable to the circumstances of the present case, will not stand as bar to the maintainability of the second suit The suit was accordingly maintainable. I accordingly agree with the proposed opinion of brother Trivedi. T.S. Misra, J. 43. I have had the advantage of reading the draft judgment prepared by my learned brother O.P. Trivedi, J. I would give my own reasons to reach the same conclusion, 44. The question referred to this Full Bench is as follows: Is the plaintiff's suit (No. 16 of 1973) maintainable having regard to the provisions of Order 2, Rule 2 of the Code of Civil Procedure ? The circumstances leading to this question are these. 45. The applicant Sardar Balbir Singh was a tenant of premises of which Atma Ram Srivastava, opposite party is the landlord. The tenancy of the applicant was determined by a notice dated 22-5-1963 served on him on 4-7-1968 wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. (2) 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) 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. This rule precludes splitting up of cause of action obviously on the principle that no person should be unnecessarily vexed and harassed with multiplicity of suits. It would be contrary to the policy of Courts and against orderly administration of justice if piecemeal litigation of a single cause of action is permitted. The principle is based upon reasons of public policy. Thus if a person has only one single claim, or cause of action, he is not permitted to split up that cause of action and maintain successive suits for different parts. This, however, would not mean that he must file a suit for the whole claim. He may maintain a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court while examining the scope of the provisions of Rule 2 of Order II, Code of Civil Procedure laid down: -- No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. ............ What matters is not the characterisation of the particular sum demanded but what in substance is the allegation on which the claim to the sum was based and as regards the legal relationship on the basis of which that relief was sought.'' Again in Sidramappa v. Rajashetty [1970] 3 SCR 319 the Supreme Court while referring to the provisions of Rule 2, Order II, Civil Procedure Code observed; The requirement of Order 2, Rule 2 is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. 'Cause of action' means the cause of action for which the suit was brought. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the same cause of action. 47. Reading Rules 2 and 4 together it would be clear that under Rule 2 the plaintiff may omit to seek a relief with the leave of the court, whereas under Rule 4 the plaintiff may and with the leave of the court claim other than the claims mentioned in Clauses (a), (b) and (c) thereof in the suit filed for the recovery of possession of immovable property. Thus under Rule 2 leave of the Court may be had by the plaintiff to omit a claim in the suit with liberty to file a fresh suit for the same, whereas under Rule 4 leave of the court may be had to add a claim which he is not otherwise entitled to add in a suit for recovery of immovable property. Rule 4 does not permit joinder of causes of action without the leave of the court in a suit for recovery of immovable property and is thus an exception to Rule 3. Certain, claims mentioned in Sub-clauses (a), (b) and (c) of Rule 4 may, however, be also sought for without the leave of the court in a suit filed for the recovery of immovable property. Rule 6 of Order II, Civil Procedure Code enables the court to order separate trials if it appears to it that several causes of action all joined in one suit cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew cause of action particularly when a suit on new case or cause of action is barred: Weldon v. Neal (1887) 19 QBD 394. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation. Then dealing with the connotation of the term 'cause of action' in the context of an application for amendment of pleading the Supreme Court observed; The expression 'cause of action' in the present context does not mean 'every fact which it is material to be proved to entitle the plaintiff to succeed' as was said in Cooke v. Gil (1873) 8 CP 107, in a different context for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corpn. Ltd. 1962 2 All ER 24, and it seems ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for appropriate relief or reliefs. The right to maintain an action depends upon the existence of a cause of action which Involves a combination of a right on the part of the plaintiff and the violation of such right by the defendant. The duty on the part of the defendant may arise from a contract or may be imposed by positive law independent of contract, it may arise of contract us or ex delicto. A cause of action arises from the invasion of the plaintiff's right by violation of some duty Imposed upon the defendant in favour of the plaintiff either by voluntary contract or by positive law. 50. The scheme of Order II of the Code of Civil Procedure suggests that the provision of Rule 2 is applicable to a given state of facts wherefrom the plaintiff seeks different kinds of reliefs but all of which kinds of relief spring from the same state of facts and, therefore, are connected with the same subject of action. Rule 3 authorises joinder of causes of action which also arise from the same transaction or from transactions connected with the same subject of action. 51. Rule 2 of Order II, Civil Procedure Code however, prohibits splitting up of a cause of action. No precise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lessee under him continues in possession even after the determination of the lease, the landlord undoubtedly has the right to eject him forthwith; but if he does not, and there is neither assent nor dissent on his part to the continuance of occupation of such person, the latter becomes in the language of English law a tenant on sufferance who has no lawful title to the land but hold it merely through the laches of the landlord. If now the landlord accepted rent from such person or otherwise expresses assent to the continuance of his possession, a new tenancy comes into existence as it contemplated by Section 116, T.P. Act and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from month to month in accordance with the provisions of Section 106 of the Act. Further it was observed therein:-- It can scarcely be disputed that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. The same view was reiterated in Bhawanji v. Himatlal [1972] 2 SCR 890 and Badrilal v. Indore Municipality [1973] 3 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sne profits for use and occupation of the premises after the determination of the lease. 55. It is the duty of the lessee to surrender possession on the determination of the lease. On his failure the lessor gets entitled to claim damages for the lessee's delay in surrendering possession and he may recover whatever damages he may have suffered thereby end which were directly caused by such failure on the part of the lessee. 56. In the instant case, the tenancy of the present petitioner was determined by a notice served on him under Section 106, T.P. Act and he was asked to vacate the premises on the expiry of three months from the date of service of the notice. The petitioner, however, failed to vacate the premises in compliance with the said notice. A suit was thereupon filed by the lessor for recovery of damages and leave of the court was obtained for filing a suit for eviction against the present petitioner afterwards. That guilt was also filed by the lessor during the pendency of the former suit. The latter suit for recovery of immovable property seems to have been filed on the ground that the tenancy of the present petitioner has been determined by a notice but he had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmission of the court would be needed for setting up a claim for mesne profits also. The provision of Sub-clause (c) of Rule 4, Order II, Civil Procedure Code is thus a reiteration of the principle embodied in Rule 2 of Order II, Civil Procedure Code. 57. The effect of the provisions of Rules 2 and 4 of Order II. Civil Procedure Code to the extent relevant to the case filed by the lessor against the lessee may be thus condensed. On the determination of the lease the law invests the lessor with a right to have vacant possession of the premises and imposes a duty on the lessee to deliver vacant possession of the same to the lessor. The cause of action involves a combination of this right on the part of the lessor and the invasion of such right by the lessee by failing to perform the duty. The cause of action, in such a case, arises when the tenancy is determined and the lessee fails to vacate and deliver vacant possession of the premises to the lessor. Breach of the tenant's duty and violation of the landlord's right gives rise to a cause of action resulting in two reliefs, one for eviction and the other for mesne profits and damages. Except with the leave of the court obt ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
