BHIMALAXMINARAYAN S/O MALLAYYA Vs. MADAMSETTI KRISHNA S/O GUNAIAH

JUDGEMENT

(1.) THIS is a defendant's appeal against the order of remand of the lower Court. The learned Single Judge has referred this appeal to the Division Bench.

(2.) THE facts are somewhat interesting and a point of law regarding the construction of Section 31 Hy. C.P.C. : Order 2, Rule, 2, I. C.P.C., has arisen. The facts briefly are that respondent filed the present suit for damages for non delivery of 300 tins of groundnut oil stating that the current rate per maund was Rs. 8 -5 -10 more than the contract rate; and the transaction would have -given the plaintiff the suit amount as profit. The facts stated in paras. 1 and 2 of the plaint are that defendant 3 is the agent and defendants 1 and 2 are the owners of Sriram Rice and Oil Mills and defendant 3 on his behalf and on behalf of defendants 1 and 2 contracted to sell 650 tins of oil at the rate of Rs. 12 -23 per maund. The plaintiff paid Rs. 6000 and odd towards the price of the said 650 tins and gave delivery of 260 tins of oil in as much as the defendants sold at plaintiff's behest the said 260 tins of oil to Laxminarayan and Company and recovered Rs. 450 which amount was thus accrued due to the plaintiffs but has not been pad to him. The plaintiff in the provisos suit stated that he was entitled to the return of the whole of the price of Rs. 60.0 and odd which he paid to the defendants towards the contract of the purchase of 550 tins. He also alleged that in the sale which was made on his behalf to Laxminarayan and Company of the 250 tins of oil he has made a profit of Rs. 809.14 -3. This -amount should also be paid to the plaintiff. The said suit was filed on 12th Aban 1355 F. The present suit dated 2nd Bahaman 1866 F is for the profit which plaintiff could have got if the 800 tins of oil would have been delivered as the contract rate by the defendants.

(3.) THE lower Court relied upon Shridhar Mahadeo v. Godwal Jethmal : A.I.R. (27) 1940 Bom 20. In that case the plaintiffs had sued a mamlatdar for illegal distraint and recovery of arrears of rent, The first suit was for the recovery of the amount wrongly collected and the 2nd suit was for damages for loss of reputation of business It was held that these claims were founded on different causes of action although they arise from the same transaction, because one was regarding the loss of reputation and the other was for the actual amount paid. We think that this ruling is not on all fairs with the facts of the present case. In the present case before us, the previous suit not only include claims for recovery of price paid but also for actual profits which had accrued to plaintiffs on account of the sale of 250 tins of oil. Moreover, a tort to body or status is a different thing from a claim for damages arising out of an ordinary contract. Reliance was also placed on Sonukhushal v. Bahinibai Krishna, A.I.R. 1916 Bom. 310. This case also in our opinion, is not relevant. The fact to were that various, alienations were made to different persons on different dates by the deceased. In a suit by the heir challenging the alienations it was laid down that the plaintiffs can join all the alikeness in one suit but it was not obligatory upon him to do so, It is clear that the ruling refers mostly to provisions of Order 2, Rule 8, Bachelor J. while discussing what is meant by one cause of action expressed the opinion that back alienation in favour of an alienee is a different cause of action and it is not identical with the cause of action arising from some other alienation in favour of a different alienee. The Hon'ble Justice also laid down a proposition stating that