SUBBARAYA CHETTI Vs. RATHNAVELU CHETTY

JUDGEMENT

(1.) The property in suit is a house let on an agreement under which the tenant undertook to vacate the premises on a month's notice. The notice was duly given but the tenant did not surrender; the landlord sued for possession and obtained a decree; he now SUCK for arrears of rent due under the lease.

(2.) The question for decision is whether the suit is barred by Section 43 of the Civil Procedure Code, whether, that is, the claim for rent is a part of the claim which the plaintiff was entitled to make in respect of the cause of action in which he founded his suit for possession,

(3.) Let it be granted for the purposes of this judgment that the appellants are right in contending that the claim for rent and the claim for possession are both claims arising out of, or founded on obligations created by the agreement, that is to say, that the learned Judge was in error in holding that the foundation of the earlier action was tort and of the latter contract. That does not conclude the question for it remains to be seen whether both claims are claims in respect of the cause of action for ejectment. It is clear that the causes of action in both suits are not the same. The cause of action for any portion of the rent is complete when that part of the rent is due and is unpaid; the cause of action for recovery of the property does not arise until the tenancy is determined-the one is founded on the obligation to pay for the occupation, the other on an obligation to withdraw from the occupation. The whole claim which the plaintiff is entitled to make in respect of the latter cause of action seems to be a claim to be put in possession of the property. He is entitled no doubt to join in the same action, claims for rent and damages [section 44 (a) and (6) ] but those claims are parts of separate causes of action and are not parts of the claim in respect of the cause of action for recovery of possession. They are unconnected with the obligation to surrender. In Venkoba v. Subbanna 11 M. 151 the learned judges draw attention to the change made by the later codes as compared with Act VIII of 1859 and explain the law as it now stands to require the plaintiff to include in his suit not only the claim arising out of that cause of action but also any other claim founded on the same cause of action and enforceable at the date of the former suit." It is to be inferred that a claim in respect of a cause of action is a claim founded on that cause of action, and the difference between a claim founded on a cause of action and a claim arising out of a cause of action, seems to be more a difference of metaphor than a difference in the quality of the claim.