Union of India (UOI) v. Firm Baijnath Govind Das — 1956 DIGILAW 266 (ALL)

JUDGMENT D.N. Roy, J. - A consignment of 106 bales of cloth was dispatched from Ahmedabad to Mirzapur for delivery to the Plaintiff Respondent on 19-2-1947. On 14-3-1947 only 104 bales were delivered and amongst them there of the bales were found tampered with. The remaining two bales were not delivered at all. Two separate notices were given by the Plaintiff to the Defendant claiming damages, one in respect of the shortage that was found in 104 bales, and the other in respect of the remaining two bales referred to above. In regard to the first matter Suit No. 72 of 1948 was instituted in the court of small causes on 15-4-1948 for recovery of a sum of Rs. 197-13-6. In regard to the other matter Suit No. 199 of 1948 was instituted on 8-5-1948 in the court of the Munsif. In this second suit a plea was raised by the Defendant to the effect that the suit was barred by Order 2, Rule 2 of the Code of Civil Procedure. That plea found favour with the learned Munsif and he dismissed the suit allowing the Defendant half of his costs from the Plaintiff. 2. In appeal the lower appellate court came to the conclusion that Order 2, Rule 2 was no bar. The lower appellate court accordingly allowed the appeal and remanded the case to the trial court with directions to readmit it in its original number and then to proceed with it according to law. It is against that order that the present appeal has been filed in this Court. 3. No appearance has been entered by the Plaintiff-Respondent in spite of due service of notice. Upon a reading of the plaint and the provisions of Order 2, Rule 2 of the Code I am of opinion that the view taken by the lower appellate court was incorrect. 3. No appearance has been entered by the Plaintiff-Respondent in spite of due service of notice. Upon a reading of the plaint and the provisions of Order 2, Rule 2 of the Code I am of opinion that the view taken by the lower appellate court was incorrect. In paragraph 7 of the plaint it was stated that "the cause of action for the present suit arose on 14-3-1947 being the date of delivery of only 104 bales and failure of the railway company to deliver the two bales of cloth at Mirzapur." Order 2, Rule 2 of the CPC provides as follows: 2.(1) Every suit shall include the whole of the claim which the Plaintiff is entitled 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) 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. 4. The wording of Order 2, Rule 2 is founded upon the principle that a person shall not be entitled to two reliefs in the same cause. It is directed against two evils i.e., the splitting up of a claim and the splitting up of a remedy. 5. Order 2, Rule 2 of the CPC of 1908 is equivalent to Section 43 of the earlier Code of Civil Procedure. Section 43 was in the following terms: Every suit shall include the whole of the claim which the Plaintiff is entitled to in respect of the cause of action. If a Plaintiff omits to sue in respect of any portion of his claim, he shall not afterwards sue in respect of the portion so omitted. 6. In considering Section 43 of the old Code it was held in Anderson Wright and Co. v. Kalagarla Surjinarain ILR 12 Cal. If a Plaintiff omits to sue in respect of any portion of his claim, he shall not afterwards sue in respect of the portion so omitted. 6. In considering Section 43 of the old Code it was held in Anderson Wright and Co. v. Kalagarla Surjinarain ILR 12 Cal. 339 it was held by Wilson, J., that where there are two breaches of one term in one contract and both occur before any suit is brought, the cause of action within the meaning of Section 43 is the non performance of the promise and only one suit will lie. This view was approved of in a later decision by the Calcutta High Court in Duncan Brothers and Co. v. Jeetmull Greedharee Lal ILR 19 Cal. 372. 7. This question which arises for consideration in present appeal is whether there were two separate causes of action for the two suits as has been held by the lower appellate Court or whether the cause of action was one and the same and a single suit should have been instituted. The lower appellate court relied upon a Privy Council decision in AIR 1949 78 (Privy Council) in support of its view that the cause of action means every fact which will be necessary for the Plaintiff to prove, if traversed, in order to support his right to the judgment; and that if the evidence to support the two claims is different, then the causes of action are also different. The lower appellate court was further of the view that since the evidence in the suit out of which this appeal has arisen would be different from the evidence in the suit that was instituted in the Court of Small Causes, the causes of action in the two suits must be held to be different. The lower appellate court misconstrued the real import of the decision of the Privy Council and altogether overlooked what was stated in para. 7 of the plaint, where, as I have already stated, it was stated that the cause of action for the present suit arose on 14-3-1947 being the date of delivery of only 104 bales and the failure on the railway company to deliver the two bales of cloth at Mirzapur. 7 of the plaint, where, as I have already stated, it was stated that the cause of action for the present suit arose on 14-3-1947 being the date of delivery of only 104 bales and the failure on the railway company to deliver the two bales of cloth at Mirzapur. Where there were two breaches of contract in one contract and both occurred before any suit was brought, the cause of action within the meaning of Order 2, Rule 2 is the non performance of the promise and only one suit will lie. Obviously, therefore, the present suit was barred under the provisions of Order 2, Rule 2 of the Code. 8. The appeal is, therefore, allowed. The decision of the court below is set aside and the judgment of the first court is restored. The Appellant shall get his costs of this Court and of the lower appellate court from the Respondent.