N. G. SHELAT, J. ( 1 ) THE suit from which this second appeal arises was instituted by the plaintiff-appellant in the Court of the Civil Judge (J. D.) at Kadi for recovering Rs. 782. 00 due on account of rent for a period from 27 June 1953 to 26th April 1956 at the rate of Rs. 23. 00 per month under a rent-note dated 27th June 1963 together with an amount of Rs. 96-8-0 by way of interest at 920 and future interest and costs of the suit against the defendants-respondents. ( 2 ) RESPONDENT No. 2-defendant No. 2 is the son of respondent No. 1 No. 1 and the suit proceeded ex-parte against him. The defendant No. 1 resisted the suit as per the contentions raised by him in his written statement Ex. 9. He inter alia contended that the plaintiff had filed one Small Cause Suit No. 69 of 1956 in the same Court on 18th April 1956 for recovering arrears of rent due for a period from 24th March 1953 to 23rd June 1953 in respect of the same house taken under a rent-note dated 24-12-1951 executed by these two defendants and also by defendant No. 1 as a guardian of his three minor sons and that since the arrears of rent claimed in this suit had already fallen due on the date when the plaintiff had filed the earlier suit and since he had not chosen to include this claim therein the present suit is barred by reason of the provisions contained in 0. 2 R. 2 of the Civil Procedure Code. ( 3 ) THE trial Court raised the issues at Ex. 24 and in its opinion while the claim was proved by the plaintiff against the defendants it was subject to the finding on issue No. 1 relating to the bar under 0. 2 R. 2 of the Civil Procedure Code. In respect of that issue it held that the cause of action for the present suit was identical with the one under previous suit and since he had not chosen to include this claim in the earlier suit the present claim for arrears of rent was barred by the provisions contained in 0. 2 R. 2 of the Civil Procedure Code. 2 R. 2 of the Civil Procedure Code. However for the remaining period which could not be covered in the previous suit it passed a decree for the sum of Rs. 6-13 np. together with interest at the rate of 9/0 for a period from 19th April 1456 to 26th April 1956 together with costs in proportion and with interest at 62% thereon. The rest of the plaintiffs claim was dismissed directing the plaintiff to pay the costs of the claim disallowed to the defendants. Feeling dissatisfied with that decision passed on 9th August 1957 by Mr. T. P. Shah Civil Judge (J. D.) Kadi the plaintiff preferred Civil Appeal No. 110 of 1957 in the Court of the District Judge of Mehsana. This appeal was heard by the learned 2nd Extra Assistant Judge at Mehsana and agreeing with the decision passed by the learned trial Judge he dismissed the appeal with costs. Feeling disatisfied with that decision the plaintiff has come in appeal. ( 4 ) THE facts in the suit are no longer in dispute. The defendant No. 1 has four sons-three of whom were minors on the date of the suit. The defendant No. 1 took the house property belonging to the plaintiff by executing a rent-note dated 24-12-1951 for himself and as a guardian of his three minor sons. The defendant No. 2 had also executed that rent-note. The rent fixed thereunder was Rs. 23. 00 per month. On 18th April 1956 the plaintiff-appellant had filed Small Cause Suit No. 59 of 1956 wherein he claimed rent due for a period from 24th March 1953 to 23rd June 1953 from these two defendants and three other minor sons of defendant No. 1 on the strength of a rent-note dated 24th December 1951. On 27-6-53 the plaintiff had obtained another rent-note Ex. 33 in respect of the same house-property from defendants Nos. 1 and 2 only. The rent fixed thereunder was the same viz. Rs. 23. 00 per month. The defendants had remained in arrears and for recovering the same this plaintiff had filed the present suit. The claim made in the suit is for the rent duo for a period from 27th June 1953 i. e. the date of the rent-note till 26th April 1956 The suit was filed on 27th April 1956. Rs. 23. 00 per month. The defendants had remained in arrears and for recovering the same this plaintiff had filed the present suit. The claim made in the suit is for the rent duo for a period from 27th June 1953 i. e. the date of the rent-note till 26th April 1956 The suit was filed on 27th April 1956. The claim is not in dispute However the contention raised by the defendants in the suit was that the claim for rent made in the suit was already due from them when the previous suit was filed by the plaintiff on 18-4-1956 and since he had not chosen to include that claim in the previous suit at any rate for the amount due till 18-4-56 that much claim is barred by reason of the provisions contained in 0. 2 R. 2 of the Civil Procedure Code. Both the Courts have held that the claim for a period till 18-4-56 was barred and it is against that part of the decision that the plaintiff has come in appeal in this Court. ( 5 ) THE contention made out by Mr. Karlekar the learned advocate for the plaintiff-appellant was that the operation of the provision contained in O. 2 R. 2 of the Code of Civil Procedure would arise only if the cause of action for both the suits was one and identical and that too was between the same parties. According to him both the suits were based on different causes of action viz. under the two different rent-notes in respect of different claims thereunder from the defendants and at any rate since the parties in respect of both suits were not the same there would not arise any bar having to the provisions contained in O. 2 R. 2 of the Civil Procedure Code. O. 2 R. 2 (1) 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;. . . . . . . . . Then comes clause (2) which says 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. . . . . . . . . Then comes clause (2) which says 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. It is by reason of clause (2) that the contention was raised that since the plaintiff omitted to sue in respect of the arrears of rent which had already become due from them at the time when the previous suit was filed in the same Court and as that claim was identical in the nature viz. for the recovery of arrears of rent in respect of the same house and that way since he had not chosen to include that in the previous suit he is debarred from claiming the same amount by reason of this clause. Before we actually consider the effect of the words in respect of the cause of action appearing in clause (1) of R. 2 O. 2 of the Civil Procedure Code it is essential to refer to Rule 3 of Order 2 of the Civil Procedure Code which relates to joinder of causes of action. Order 2 Rule 3 (1) provides that Save as otherwise provided a plaintiff may unite in the same suit several causes of action against the same defendant or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit. This clause permits the plaintiff to unite in the same suit several causes of action provided they are against the same defendant or the same defendants jointly. It is thus a permissive provision and that way it leaves him with an option to join in the same suit different causes of action provided they are against the same defendant or the same defendants jointly. Now the defendants in both the suits are different while in the former suit all five of them in the present suit only two defendants. Even if therefore the plaintiff desired to join both the causes of action he could not have been able to do so since defendants or the persons liable for the claims differ and it would not matter if two of them viz. Even if therefore the plaintiff desired to join both the causes of action he could not have been able to do so since defendants or the persons liable for the claims differ and it would not matter if two of them viz. these respondents were the same in the earlier suit. The suit would be defective on that ground. Therefore when the bar arising out of R. 2 of O. 2 of the Civil Procedure Code is to be considered it is also to be seen whether there would have arisen any defect in the suit by reason of uniting in the same suit several causes of action against different defendants and if so as I think it would the bar under O. 2 R. 2 cannot arise. ( 6 ) NOW in order to appreciate the contentions raised by the learned advocates appearing on either side it has to be said that much would depend upon as to how the term cause of action used in clause (1) of R. 2 of O. 2 of the Civil Procedure Code is construed. The term cause of action has nowhere been defined in the Civil Procedure Code and that term has been explained in various decisions of different Courts In Mohammad Khalil Khan v. Mahbub Ali Mian A. I. R. 1949 Privy Council 78 it has been explained to mean as every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. If the evidence to support the two claims is different i then the causes of action are also different. The facts of the case were that on 14th September 1925 Mohammad Khalil Khan and Fida Ali Khan and another filed a suit of their own viz. Suit No. 8 of 1928 in respect of certain property called Oudh property against Abadi Begam (defendant No. 1) Mushtaq Ahmad (defendant No. 2) Abdul Latif (defendant No. 3) and Mahbub brothers (defendants Nos. 4 to 7) and one Ghulam Jelani. The plaintiffs had confined their claim to that property alone and had not included in their claim the other property called Shahjahanpur property although that property also had belonged to Rani Barkatunissa and the Collector of Shahjahanpur had already decided against their claim on 20th June 1918. 4 to 7) and one Ghulam Jelani. The plaintiffs had confined their claim to that property alone and had not included in their claim the other property called Shahjahanpur property although that property also had belonged to Rani Barkatunissa and the Collector of Shahjahanpur had already decided against their claim on 20th June 1918. In respect of Shahjahanpur property another suit was filed and the question arose as to whether the suit in respect of that property was barred by the provisions contained in O. 2 R. 2 of the Civil Procedure Code. While considering that part of the argument Their Lordships discussed the meaning of the expression cause of action as explained in various leading cases and then observed that the plaintiffs cause of action to recover the properties consisted of those facts which would entitle them to establish their title to the properties and those facts were the same with respect to both properties those being that Rani Barkatunissa was the owner of the properties; that she died on 13th February 1937; that she was a Sunni by faith and that they were her heirs under the Muhammadan law. If the plaintiffs proved those facts they would be establishing their right to both the properties. It was that way that they found that the cause of action in respect of both the properties was one in identity and since the plaintiffs had not included the Shahjahanpur property in the earlier suit the subsequent suit was barred by the provisions contained in O. 2 R. 2 At one place Their Lordships happened to observe that what would constitute the cause of action in a suit must always depend on the particular facts of the case and one of the tests that is applied where the question whether the cause of action in two suits is the same or not is whether the same evidence would support the claim in both suits; and if the evidence required to support the claim is different then the causes of action are also different. In view of this decision it is unnecessary to refer to various other cases wherein this very expression cause of action has been explained. However I would refer to one or two decisions where this very term has been explained. In Krishanaji Ramchandra v. Ragunath Shanker 55 Born. In view of this decision it is unnecessary to refer to various other cases wherein this very expression cause of action has been explained. However I would refer to one or two decisions where this very term has been explained. In Krishanaji Ramchandra v. Ragunath Shanker 55 Born. L. R. 741 the words cause of action used in O. 2 R. 2 (1) of the Code of Civil Procedure are explained as meaning the particular cause of action and where there are different causes of action; O. 2 R. 2 of the Code will not apply. It is only where the causes of action are the same the bar imposed in the said provision will apply. In Sher Ali Mridha v. Torap Ali A. I. R. 1942 Calcutta 407 the expression cause of action has been explained as really meaning the fact or combination of facts which give rise to a right of action the right of suing before a Judge for realisation of the relief arising out of the infringement of the right. In other words it means the facts that give rise to a right for an action and facts which require that right to be exercised arising out of the infringement of the right. Applying these tests in the case before us the plaintiff is required to establish his right to action and that right to action arises against these two defendants under a rent-note Ex. 33 dated 27-6-53. He has further to establish that these two defendants failed to pay the rent for the property given to them under that rent-note. Similarly in the previous suit the plaintiff had to establish his right to action and that was against not these two respondents only but against them and three other minor sons of respondent No. 1. That right to action was under a different rent-note of 24-12-51 and thus the genesis of the right to action was not the same as was in Mohammad Khalil Khans case referred to above hut was quite distinct. For establiing the two causes of action the plaintiff would have to establish different facts on the strength of different evidence as they were different rent-notes executed by different persons though no doubt in respect of the same property. For establiing the two causes of action the plaintiff would have to establish different facts on the strength of different evidence as they were different rent-notes executed by different persons though no doubt in respect of the same property. The mere fact that two of the parties to the subsequent rent-note were also parties to the earlier rent-note of 1951 or that the property and the rent for the property was the same cannot make the right to action in any way the same or identical so as to justify the plaintiff to join both the causes of action in the earlier suit and that his not having done so the penalty under O. 2 R. 2 of the Civil Procedure Code would visit his claim in this suit. ( 7 ) IT was however pointed out by Mr. Shah the learned advocate for the respondents by reference to a case of Shanmugam Pillai v. Syed Gulam Ghose I. L. R. 27 Madras 116 that it is non-payment of rent which amounts to a cause of action for the suit against the tenant and since that was common in both the suits it can be said that the cause of action for both the suits was one and identical. The facts of the case were that the plaintiff Inamdar of the Sarvamaniam villages of Valuthur etc. sued to recover from the defendants one of his mirasidars certain amount of rent due for fasli 1305 under a registered muchilika for five years executed by the defendant on 20th May 1891. One of the objections raised to the suit was that a suit for fasli 1306 was barred by sec. 43 (which is now O. 2 R. 2) of the Civil Procedure Code. The first two Courts took the view that the suit was not based on the same cause of action as the previous suit for the rent was for the fasli 1306 and that here was consequently no bar. In appeal the High Court held that there were separate muchilikas for faslis 1306 and 1305 yet there was but one cause of action viz. non-payment of rent by a tenant to his landlord. Though the rents became payable under different documents and at different times they are only different claims under the same cause of action or tenancy. In appeal the High Court held that there were separate muchilikas for faslis 1306 and 1305 yet there was but one cause of action viz. non-payment of rent by a tenant to his landlord. Though the rents became payable under different documents and at different times they are only different claims under the same cause of action or tenancy. They have then observed that this case is very similar to the cause where several articles are sold in succession by A to B. If the vendor sues for the price he must sue for the price of all the goods sold to the date of his suit and cannot sue separately first for one and then for another. It was therefore held that sec. 43 was a bar to the second suit. Now apart from the fact that the suits were between the same parties which distinguishes the present case before us the meaning of the term cause of action is not at all considered in the light of various decisions including that of the Privy Council referred to by me hereabove. The weight of the authorities is otherwise and with respect I am unable to accept that view. ( 8 ) MY attention was invited by Mr. Karlekar to a decision in a case of Sonu Khushal Khadake v. Bahinibai Krishna 18 Bom. L. R. 45. In this case the property in dispute belonged to one Tukaram who died in 1901 leaving behind him his wife Bhagirathi and two daughters. On 4 January 1906 Bhagirathi sold a portion of Tukarams property to one Dagdu and on the 12th idem sold other part of the property to one Zagdu. Zagdu and Ukhardu were brothers and they were joint in estate. Bhagirathi died on the 5th August 1909. On 26th April 1910 Bahinibai daughther of Bhagirathi filed a suit (No. 270 of 1910) against Zagdu and one Tapi to recover possession of the property sold to Zagdu. In the meantime Bahinibai and her sister passed a deed of gift of all the three survey numbers to one Tukaram son of Dagdu. The two sisters presented a purshis to the Court on the 24th September 1910 whereby the suit came to be dismissed on the 7th October 1910. In the meantime Bahinibai and her sister passed a deed of gift of all the three survey numbers to one Tukaram son of Dagdu. The two sisters presented a purshis to the Court on the 24th September 1910 whereby the suit came to be dismissed on the 7th October 1910. On 7th October 1910 Bahinibai sold those very three survey numbers to one Sonu and on the strength of that sale-deed Sonu filed a suit on the 7th December 1912 to recover possession of those three survey numbers. The Court of first instance dismissed the suit on the preliminary ground that it was barred by the provisions of O. 2 R. 2 of the Civil Procedure Code. On appeal that decision was confirmed by the District Judge. Both the Courts held that as Bahini omitted to sue in respect of two survey numbers in 1910 the plaintiff who derived his right through her was barred by O. 2 R. 2 of the Civil Procedure Code from preferring his claim to those numbers in the present suit. The High Court however held that inasmuch as the causes of action in the two suits were different the two sets of facts which required to be proved in both the suits in order to enable the plaintiff to succeed being different sets of facts the suit was not barred under O. 2 R. 2 of the Civil Procedure Code. Their Lordships in the course of their judgment explained the term cause of action by reference to various authorities and adopted the principle that one great criterion for finding out as to whether there existed the same cause of action in both the suits was that the same evidence will be required to maintain both the actions. Hayward J. in a concurrent judgment has made certain observations which appear to be quite useful and have some bearing in the present case. Hayward J. in a concurrent judgment has made certain observations which appear to be quite useful and have some bearing in the present case. After observing that the cause of action in the suit of 1910 consisted of the title arising on the death of Bhagirathi and the alleged invalidity of the sale-deed relating to survey No. 324 in favour of Zagdu and the cause of action in the suit of 1912 consisted of the title arising on the death of Bhagirathi and the alleged invalidity not for present purposes of the sale-deed relating to survey No. 324 in favour of Zagdu but of another sale-deed relating to other survey Nos. 403 and 404 in favour of another Dagdu he has then observed that no doubt those two separate causes of action might have been joined together in one suit as raising the common question of title arising out of the death of Bhagirathi and affecting to some extent each of the two different defendants under the permissive provisions of O. 1 R. 3 of the Schedule of the Civil Procedure Code as in the cases of Nundo Kumar Nasker v. Banomali Gavan ( (1902) I. L. R. 29 Calcutta 871) and Umabai v. Vithal ( (1908) 11 Bom. L. R. 34 ). But that is quite another thing from holding that those two separate causes of action ought to have been joined together in one suit against the two different defendants. The two causes of action were clearly separate because the invalidity of the sale-deed in favour of Zagdu could not have been established solely by proof of the invalidity of sale-deed in favour of Dagdu. Nor would proof of the invalidity of the sale-deed in favour of Zagdu alone have sufficed to settle the invalidity of the sale-deed in favour of Dagdu. Moreover the two causes of action affected different defendants. There was therefore no legal necessity to joint them in one suit as neither claims under separate causes of action nor claims affecting different defendants are contemplated by the peremptory provisions of O. II R. 2 of the Schedule of the Civil Procedure Code. It would not have mattered even if the two separate causes of action had jointly affected the different defendants and had not involved a several liability of each of the two different defendants. It would not have mattered even if the two separate causes of action had jointly affected the different defendants and had not involved a several liability of each of the two different defendants. For they would still have been beyond the contemplation of the peremptory provisions of O. II R. 2 though within the permissive provisions of O. II R. 3 of the Schedule to the Civil Procedure Code. Then he observed that it seems to him essential for the proper determination of those somewhat difficult questions of nonjoinder and mis-joinder that not only should the causes of action in each case be exactly comprehended but that a clear distinction should be maintained between the permissive nature of the provisions of O. I R. 3 and O. II R. 3 and the peremptory nature of the provisions of O. II R. 2 of the 1st Schedule to the Civil Procedure Code. I have already referred to the provision contained in O. 2 R. 3 which permits the plaintiff to join different causes of action provided they are against the same defendant or defendants. Even that this plaintiff could not have done as the persons liable under two different rent-notes were different and not the same and the suit would have been bad on ground of multifariousness and when that test is applied it is too much to say that his having not included the claim of rent in the previous suit would be hit by provisions contained in O. 2 R. 2 of the Civil Procedure Code. What has weighed with the Courts below is that the claim is similar viz. of rent and that again in respect of the same property and further as the defendants in the suit were defendants in earlier suit- with three other minor sons of defendant No. 1 living in the same house and forming as it were one family. Now two things are evident. One is that even though defendant No. 1 as father of the minor sons executed the previous rent-note of 1951 the minors would be independently liable for the claim of rent and they were no longer made liable in a subsequent rent-note of 1953. The liability in the former case was of five persons so far as plaintiff is concerned and was of only two defendants in the subsequent suit. The liability in the former case was of five persons so far as plaintiff is concerned and was of only two defendants in the subsequent suit. They arise from different rent-notes and claim are also for different periods. Not only therefore the plaintiff ought to have included the subsequent claim in the former suit even if he desired to include he could not have done so under even the permissive provisions contained in O. 2 R. 3 of the Civil Procedure Code. In my opinion therefore the caused of action in the subsequent suit though may be of a similar character was not at all the same or identical with the previous one and further since that would be against different parties the provisions of O. 2 R. 2 are not attracted and there is no bar to the present claim in the suit. ( 9 ) IT was then argued that tat any rate these two defendants were the parties in the previous suit and so far as they are concerned the entire claim which the plaintiff has chosen to make in this suit could have been included in the previous suit and since it was not so included the plaintiff would not be entitled to a decree in respect of that claim. In support thereof Mr. Shah has relied upon a case of Phani Bhusan Mukherjee v. Rajendra Nandan Goswami A. I. R. 1947 Calcutta 11. The facts of that case were that the plaintiff had filed a suit for recovery of arrears of durputni rents from the defendants for the years 1343 and 1344 B. S. Of the two defendants No. 2 did not content the suit and the claim of the plaintiff was resisted by defendant No. 1 alone whose main contention was that the plaintiffs suit was barred under the provisions of O. 2 R. 2 of the Civil Procedure Code. It was averred that in the year 1939 the plaintiffs predecessor brought a suit against defendant No 1 claiming rent due in respect of the same durputni and in this suit the rent was claimed only for the year 1342 B. S. although at the date when the suit was filed rents for the years 1343 and 1344 B. S. had already become due. It was contended that the plaintiff having omitted to sue for a portion of the claim which arose out of the same cause of action was not entitled to bring a separate suit for recovery of the balance under O. 2 R. 2 of the Civil Procedure Code. That contention found favour with learned Judge and the suit came to be dismissed. The decision was upheld on appeal by the learned District Judge of Burdwan and it was against that decision that the matter went up to the high Court. It was then held that the previous judgment can operate as a bar against defendant No. 2 only if the cause of action against him is merged in the judgment but as the claim for rent for the years 1343 and 1344 B. S. was not the subject- matter of the earlier suit at all the cause of action as against defendant No. 2 so far as this claim is concerned could not be merged in the judgment and so far as defendant No. 1 was concerned it was observed that it cannot be disputed that O. 2 R. 2 Civil Procedure Code operates as a complete bar to the present suit. That way the decree was passed against defendant No. 2 for the rent claimed by the plaintiff alone and the suit came to be dismissed against defendant No. 1. The question was as observed in para (7) of the judgment whether the previous suit and the present suit had arisen out of the same cause of action viz. the same durputni lease. While considering that question it has been then observed that to make the rule applicable two things are essential : First that the previous and the present suits must arise out of the same cause of action; and secondly they must be between the same parties. Both the conditions in the present case as already discussed above are not fulfilled. That case would not therefore help the respondents. ( 10 ) IN order to apply the provisions of 0. Both the conditions in the present case as already discussed above are not fulfilled. That case would not therefore help the respondents. ( 10 ) IN order to apply the provisions of 0. 2 R. 2 of the Civil Procedure Code to bar a suit what is essential to be found out is (1) as to what was the cause of action in respect of which the claim was made in the previous suit (2) whether the claim or a portion off claim made in the subsequent suit is based on the same cause of action as the previous one and is between the same parties. Unless the second condition is fulfilled there can be no bar to the claim made in the subsequent suit. In determining the cause of action it is not that it should be merely similar but it should be the same one and indentical with the previous one as against distinct. The tests for the same are whether the genesis of the right to action is the same and whether for establishing the claim same evidence is required and secondly whether the parties are the same and there would not arise any bar by reason of 0. 2 R. 3 of the Civil Procedure Code. Now it is clear as already pointed out here above that none of these conditions stand fulfilled before the claim in the present case would be barred under 0. 2 R. 2 of the Civil Procedure Code. Both the Courts were therefore not correct in holding the suit claim barred under 0. 2 R. 2 of the Civil Procedure Code. ( 11 ) THE claim in suit is not otherwise in dispute and the plaintiff would therefore be entitled to a full decree as claimed in the suit instead of the partial decree passed in his favour by the trial Court. ( 12 ) IN the result therefore the appeal is allowed and the decree in so far as the plaintiffs claim has come to be dismissed is set aside. A decree as claimed in the suit is hereby passed against the defendants. The defendants-respondents shall pay the costs to the plaintiff-appellant throughout. Appeal allowed. .