Trivedi, J. - (1.) THE following question on reference by a learned Single Judge of this Court has come for decision before this Full Bench. "Is the plaintiff's suit (No. 16 of 1973) maintainable having regard to the provision of Order 2, Rule 2 of the Civil Procedure Code."
(2.) ATMA Ram Srivastava is the landlord of a certain house let out by him to Sardar Balbir Singh on a monthly rent of Rs. 20/-. The defendant being in arrears of rent for April and May, 1968, his tenancy was terminated by a notice dated 22-5-1968 served on 4-7-1968 by which the defendant was asked to vacate the premises on the expiry of three months from service of notice and payment of two months arrears of rent was demanded. The tenant neither paid the rent nor vacated the premises. On 28-5-1969 ATMA Ram Srivastava, opposite party in this revision, 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. 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 and 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. 16 of 1973 is now pending in the court of the Additional District Judge, Lucknow. In the second suit the defendant raised an objection that the plaintiff not having included the relief of ejectment from the house in the first suit, the subsequent suit was barred by Order 2, Rule 2 of the Civil Procedure Code. The Additional District Judge decided this objection as a preliminary point and held that the cause of action for a suit for possession is different from the cause of action for a suit for arrears of rent and mesne profits on the basis of the terms of Order 2, Rule 4 of the Civil Procedure Code which permitted the plaintiff to combine a claim for mesne profits with a claim for ejectment. The Additional District Judge had further held that quite apart from this the second suit was maintainable and the bar of Order 2, Rule 2 did not operate as the plaintiff had in the first suit reserved his right to file a suit for ejectment later and as the court had passed an order granting him permission to do so. Against the judgment of the Additional District Judge the defendant filed a revision in this Court which coming before the learned single Judge the referring order was made. Order 2, Rule 2 of the Civil Procedure Code is as follows:- "(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 clam 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."
(3.) ORDER 2, Rule 3 permits the joinder of several causes of action in the same suit by the plaintiff against the defendant or defendants, ORDER 2, Rule 4 says: "(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 claimed or any part thereof; (b) claims for 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 of redemption from asking to be put into possession of the mortgaged property." 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 respect of the same property. It was, therefore, argued that it was open to the opposite party- plaintiff to sue only for mesne profits in the first suit and to sue for ejectment in the second suit and the bar of Order 2, Rule 2, shall not hit the second suit. For this interpretation of Order 2, Rule 4, reliance was placed by the opposite party on a string of authorities, more particularly on a decision of the Bombay High Court in the case of Shankar Lal v. Ganga Bisen, (AIR 1972 Bom 326) (FB) where, amongst others the observation made was that Order 2, Rule 4 of the Code is an exception to the principle laid down in Order 2, Rules 1, 2 and 3 and that having regard to the language of Order 2, Rule 4, the claim for damages is a distinct and separate cause of action from the cause of action for the recovery of immovable property. As the view taken in this case by the Bombay High Court and in other cases cited for the opposite party appears to be opposed to the view taken by a Full Bench of this Court in Laljimal v. Hulasi, (1881) ILR 3 All 660 (FB) followed in Mewa Kuar v. Banarsi Prasad, (1895) ILR 17 All 533 one of the questions which this Bench will be called upon to decide will be whether the view that Order 2, Rule 4, is an exception to Order 2, Rules 1, 2 and 3 and whether a claim for mesne profits and a claim for ejectment from immovable property on the basis of a contract or lease are always based on distinct causes of action and never arise from the same cause of action. Before coming to the alternative plea of the opposite party that the bar of Order 2, Rule 2, does not apply as the cause of action for mesne profits claimed in the first suit and the cause of action for ejectment claimed in the second suit did not arise from the same cause of action but were based on distinct causes of action, I would like to deal with the main submission that the second suit was not hit by Order 2, Rule 2 of the Civil Procedure Code because in the first suit the opposite party had expressly reserved his right to file a suit for ejectment subsequently and had also obtained leave of the court to do so. The Additional District Judge found that in the earlier suit the plaintiff had reserved his right to file a suit for possession later on and this was permitted by the court. The defendant-applicant did not dispute before us that the plaintiff had omitted in the earlier suit to sue for ejectment 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.;