MODI, J. - (1.) THIS is a second appeal by the defendants in a suit for arrears of rent, which has been decreed by both courts below.
(2.) THE material facts leading up to this appeal may be shortly stated as follows. THE defendants borrowed some money from the plaintiff by means of a mortgage of the suit house. THEreafter they took it on rent from the plaintiff under a rent-note dated Magha Sudi 2 Svt. 2004 (corresponding to the 12th February, 1948) by which the defendants agreed to pay a monthly rent of Rs. 131/ -. It is common ground between the parties that the plaintiff had filed a suit for ejectment against these defendants on the 7th May, 1952, which was dismissed. Shortly after, that is, on the 2nd August, 1952, the defendants filed a suit for fixation of standard rent and it was decided in that suit that the standard rent for the suit property would be Rs. 98/- P. M. with effect from the 2nd August, 1952, being the date on which the suit was filed. THE present suit was filed by the plaintiff on the 12th March, 1954, for recovery of arrears of rent prior to the 2nd August, 1952. THE amount claimed is Rs. 1213/15/- being the rent due for nine months and eight days, and this rent has been obviously claimed at the rate of Rs, 131/- P. M. The defendants resisted the suit on a number of grounds, but the two main grounds which may be mentioned for the purposes of this appeal were (1) that the plaintiff could not claim, rent at the rate of Rs. 131/- p. m. when the standard rent for the suit property had been fixed at the rate of Rs. 98/- p. m. in the suit brought by the defendants for the purpose; and (2) that the former suit for ejectment having been brought by the plaintiff, the present suit for arrears of rent was not maintainable by virtue of the provisions of O. 2, r. 2 CPC, Both courts below have decreed the suit and consequently the defendants have now come up in second appeal to this Court. It may be mentioned at once that the first ground of defence referred to above was given up by the defendants in the lower appellate court. It is clearly mentioned in the judgment of that court that "learned counsel for the appellant has taken his stand on two points only. Firstly, that the present suit was barred by the provisions of O. 2, r. 2 CPC as no leave of the court had been taken by him while he previously brought a suit for ejectment; and secondly, the instalments as granted by the lower court were not in conformity with the position and circumstances of the appellant and thus are oppressive. " It clearly appears from the extract cited above from the judgment of the lower appellate court that the point about the quantum of rent payable on the strength of the standard rent having been fixed at Rs. 98/- P. M. only was not pressed in that court. That being so, I am clearly of the opinion that learned counsel for the defendant is not entitled to raise that point here, as it will be presumed that the same had been abandoned in the court below. The only point which, therefore, emerges for decision in this appeal is the second one, namely, whether the present suit is barred under O. 2 r. 2 CPC. Now, there is no doubt that the plaintiff had brought an earlier suit on the 7th May, 1952, against these very defendants with respect to the suit property for ejectment and that suit was dismissed. It is unfortunate that a certified copy of the final decision in that case has not been brought on this record ; but all the same, we have a copy of the plaint which was filed by the plaintiff in that case. The relief claimed in the suit was ejectment of the defendants. Curiously enough, the legal advisers of the plaintiff in that case thought that the suit was being brought under sec. 13 (a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act No. XVII of 1950), and that all that was open to the plaintiff in such a suit was to claim the eviction of the defendants and it was not possible to include therein any claim for the recovery of the arrears of rent upto the date of the filing of the suit. This was, however, a complete mis-conception, for the position is well established that a suit for ejectment or for that matter for recovery of arrears of rent lies as a matter of law under the provisions of the Transfer of Property Act which contains the substantive law in the matter and is really not brought under the Act of 1950, though the last-mentioned Act undoubtedly subjects that right on grounds of public interest to certain restrictions. Be that as it may, the relief claimed in that suit was that the defendants be ejected, and that relief was claimed on the ground that six months' rent amounting to Rs. 786/- had fallen into arrears at the date of the suit and the defendants had many a time been told to pay the arrears of rent and vacate the suit premises but without any result. As already stated, the suit out of which this appeal arises was brought on the 12th March, 1954, for the recovery of arrears of rent from Kati Sudi 2nd Smt. 2008 to Sawan Sudi 10 Smt. 2009 (i. e. , from 1. 9. 1951 to 1. 8. 1952 ). It will be seen that part of the rent claimed amounting to Rs. 786/- covered the period upto the time when the first suit was brought and the balance of the rent amounting to Rs. 427/15/- has been claimed for the subsequent period from the 7th May, 1952, to the 1st August, 1952. Now, there cannot be any dispute as to the rent claimed for the period between the 7th May, 1952, to the 1st August, 1952, even by virtue of the provisions of O. 2 r. 2 CPC inasmuch as this part of the claim arose subsequent to the filing of the first suit. But so far as the amount of rent amounting to Rs. 786/- is claimed by the plaintiff being the amount of rent in arrears upto the 7th May, 1952, it is strenuously contended on behalf of the defendants that the present suit is barred under O. 2, r. 2 C. P. C. on the ground that the two suits are barred on the same cause of action. Learned counsel for the defendants placed his main reliance on Kashinath v. Nathoo (1 ). On the other hand, learned counsel for plaintiff relies on Subraya Chatti v. Rathnevelu Chatti (2 ). Khushi Ram v. Abdul Ghafur (3), Chettyar Firm v. Ah Waing (4), Dau Dayal v. Brij Mohan (5) and Bal Bahi v. Ghanashyam (6 ). Now before I deal with the case law I should like to invite attention to O, 2 r. 2 C. P. C. which is in the following terms: - " (1) Every suit shall include the whole 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 reliefs so omitted. Then there is an explanation to the rule with which we are not concerned. I may as well quote r. 3 here which permits the joinder of certain causes of action. This reads as follows: " (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendant jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendants jointly may unite such causes of action in the same suit. (2) Where causes of action are united the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matter at the date of institutive same defendant or ting this suit. " Now, what O. 2, r. 2 prohibits is the splitting of his claim by the plaintiff in respect of one and the same causes of action, and it lay down that the plaintiff must include the whole of his claim with respect to a single cause of action. It is further laid down as a natural consequence of what has been stated above that where a plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim, he shall not afterwards be permitted to sue in respect of the portion so omitted or relinquished. Putting the substance of the rule from a somewhat different angle, it does not compel a plaintiff to include the whole of his claim which he is entitled to make in respect of different causes of action which he may have against the same opponent no matter that such claim may arise out of the same transaction though under O, 2 r. 3 it is open to him if he so chooses to unite them in a single suit. This being the plain meaning of rules 2 and 3 of O. 2 the question that falls for consideration is whether the suit for ejectment which was earlier brought by the plaintiff was based on the same cause of action as the present suit, because if that was so, the second suit would certainly be bad. But if on the other hand, the correct legal position be that the two suits were based on different causes of action, then the second suit could not be held to be barred by virtue of anything contained in O. 2 r. 2 Can it be said, therefore, in the present case that the two suits which we are called upon to consider are based upon the same cause of action. It must be remembered, however, that because the two suits arose out of the same transaction, it cannot be predicated of them that they necessarily arose out of the same cause of action. The true test is to see whether the two suits are based upon one and the same cause of action. On careful consideration of the whole matter in the light of this test, it seems to me that it cannot be rightly said that the previous suit which was brought by the plaintiff was based on the same cause of action on which the second suit was brought. The first suit was for ejectment. The second is for recovery of arrears of rent due. I have no doubt that in order to succeed in a suit for recovery of arrears of rent, all that the plaintiff is required to prove is that the rent as agreed has fallen in arrears and has not been paid. That is the true cause of action only and the plaintiff is not required to prove anything more. But so far as a suit for ejectment is concerned, that is not enough and at the best that may be one of the elements to be proved. A plaintiff, in order to succeed in a suit for ejectment must prove, among other things, the determination of the tenancy which may have come about by one of the various modes set out in sec. 111 of the Transfer of Property Act. In other words, mere non-payment of rent is not enough for a plaintiff to prove in a suit for ejectment, though that may be all that he may be required to prove in a suit for recovery of arrears of rent due. Thus, if a first suit is brought for recovery of arrears of rent due, a second suit for ejectment may very well be brought afterwards and such a suit should not be barred by O. 2 r. 2 for the simple reason that the plaintiff may not have chosen to terminate the tenancy in the first suit. Learned counsel for the defendants candidly concedes that that is the correct position in law. But his contention is that the same position would not hold good where the plaintiff first sues for eviction and then for recovery of arrears of rent and particularly where according to him the facts on which the plaintiff relies for ejectment are or may be the same as where he relies for recovery of arrears of rent due. I have given this contention my careful and anxious consideration and do not feel disposed to accede to it. For as I look at the whole matter, the test is not which suit is brought first or last, but whether the two suits are based upon one and the same cause of action. Speaking of the class of suits with which we are concerned in the present case, it cannot possibly be said of a suit for ejectment that it was brought on the same cause of action as a suit for recovery of arrears of rent due; the requirements which a plaintiff must fulfil in order to succeed in the two suits not being the same, though it may be that both suits may cover the same ground upto a point. In other words, the cause of action in a suit for ejectment is some thing more than the cause of action in a suit for mere recovery of arrears of rent though the two reliefs may, and as they often do, arise out of the same transaction, namely, the contracts of tenancy. I feel considerably fortified in coming to the conclusion to which I have by the view adopted in a bench decision of the Madras High Court in Subraya Chetti Vs. Rathnavelu Chetti (2 ). In this case also, a suit to eject a tenant holding under a lease was brought in the first instance and thereafter a suit for rent was instituted. It was held that the subsequent suit was not barred because the causes of action in both the suits were not the same, and it was further observed in this connection that the cause of action for any portion of the rent is complete when that part of the rent is due and is upheld while the cause of action for recovery of the property does not arise until the tenancy is determined and that the cause of action in the first case is founded on the obligation to pay for the occupation of the premises and in the other on an obligation to withdraw from occupation. It was, therefore, held that the claim subsequently made was not a part of the claim which the plaintiff was entitled to make in respect of the cause of action in the former suit. The same principle is established in the other cases referred to above on the side of the plaintiff, and I do not consider it necessary to deal with them in detail. So far as the decision of the Bombay High Court in Kashinath Vs. Nathoo (1) goes, I consider it sufficient to point out that it is clearly distinguishable on facts, even if I were not to go as far to say that the case seems to me of doubtful authority particularly in view of the subsequent decision of the same High Court in Bai Duhi Vs. Ghanshyam (6 ). In Kashinath's case there was a provision in the lease deed that, on the defendant's failure to pay the rent, the plaintiff should be entitled to take possession of the lands. The defendant failed to pay the rent and so the plaintiff sued the defendant in 1909 for possession and obtained a decree. The plaintiff then brought a separate suit for rent of the two years prior to 1909. An objection was raised that the second suit was barred by O. 2, r. 2 and that objection was upheld. It seems to me that this was a very peculiar case in which the lease itself provided for the termination of the tenancy automatically on the defendant's failure to pay the rent due. It will thus appear that this case is entirely distinguishable on facts from the case before us where no provision for automatic termination of the tenancy happens to be made, and it is clearly provided that in order to terminate the tenancy six month's notice would be necessary. I, therefore, think that this case has no application to the present case.
(3.) FROM the aforesaid discussion, I am clearly disposed to hold the view that the two suits brought by the plaintiff, the first for ejectment and the second for recovery of arrears of rent were not founded on the same cause of action nor, if I may say so with all respect, the same kind of evidence would be enough for the plaintiff to succeed in either of the two suits. I, therefore, hold that the present suit is not barred by anything contained in O. 2 r. 2 C. P. C. , though I do feel that it should have been sheer common-sense on the part of the plaintiff and his legal advisers to have united his cause of action in the second suit with that in the first suit, and if he had done so, the present litigation would have been well avoided. For the reasons mentioned above, this appeal fails and is hereby dismissed. Having regard to all the circumstances of the case, I would allow the plaintiff half of his costs in this Court but the orders of the courts below as to costs shall remain in tact. Leave to appeal is refused. .;