DHABUBAI WD O NATHUBHAI DUDHABHAI Vs. BAI RATAN WD O HIRABHAI DAHYABHAI
HIGH COURT OF GUJARAT
DHABUBAI WD/O NATHUBHAI DUDHABHAI
BAI RATAN WD/O HIRABHAI DAHYABHAI
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(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. 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.;
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