Patna High Court
Phulchand Sah And Ors. vs Dinkar Prasad And Ors. on 18 August, 1954
Equivalent citations: AIR1955PAT297, 1955(3)BLJR25, AIR 1955 PATNA 297
JUDGMENT Das, J.
1. These two appeals have been heard together and will be governed by this judgment. The plaintiffs are the appellants in Second Appeal No. 1112 of 1948, while in Second Appeal No. 1677 of 1949 defendant 1 is the appellant. Though the appeals arise out of two different suits, the facts are more or less the same. These facts so far as they are relevant for the determination of the two appeals are shortly stated below.
2. The plaintiffs were Chowdhury Sah, his son and grand-sons--all members of a joint Hindu family. Chowdhury Sah is now dead and the appeal is prosecuted by his son and grand-sons, For the sake of convenience, I shall call them the plaintiffs. One Anant Lal Sah was the defendant second party. His father was Soukhichand Sah. The plaintiffs and Soukhichand Sah were joint till 1936 in which year there was a separation and the plaintiffs formed one joint family of which Chowdhury Sah was the 'Karta'. Soukhichand Sah, and after his death his son Anant Lal Sah, became the 'karta' of the other branch of the family represented by Soukhichand Sah, One Chakradhar Prasad and his sons formed a third joint Hindu family of which Chakradhar Prasad was the 'karta'. They were the defendants first party. Chakradhar Prasad, defendant 1, representing his family borrowed Rs. 1,725/- on the basis of a simple mortgage dated 25-2-1930 from the plaintiffs and the father of the defendant second party. In order to pay off the dues of that mortgage bond, defendant 1 executed a 'sudbharna' bond, which is the bond in suit, on 12-10-1936, for a consideration of Rs. 2,425/-.
The bond was executed in favour of Chowdhury Sah and Soukhichand Sah. The rate of interest stipulated in the bond was 2 per cent. per month, and in lieu of payment of interest, the mortgagees were put in possession, the stipulation being that the mortgagees would appropriate or enjoy the usufruct of the land mortgaged in lieu of payment of interest. The total area of the land mortgaged was about 88 bighas, but there was a provision in the bond that in case of payment of a sum of Rs. 100/-, or multiples thereof, the mortgagees would release from possession 31/2 bighas of land for every hundred rupees, paid. It was the admitted case of the parties that out of the mortgage, money a sum of Rs. 600/- was paid by the mortgagor and 21 bighas of land were released. The balance of the mortgage money, that remained to be paid was Rs. 1,825/- only. The due date of repayment of this balance was Chait, 1347 M. S. which would correspond to some time in 1940-41. There was a stipulation in the bond that in case of default in payment of the balance of the prin-cipal amount, the mortgagees could either sue for the money remaining unpaid or continue to remain in possession of the mortgaged land. The balance of the principal amount was not paid by Chait 1347 M. S. and the mortgagees continued in possession cf about 67 bighas of land.
It was alleged by the plaintiffs that on 14-4-1943, the defendant second party received from the mortgagor his share of the mortgage money and duly endorsed a satisfaction on the back of the mortgage bond. On the same date, the mortgagor (that is, the defendants first party) dispossessed the plaintiffs from the mortgaged lands without making any payment of the proportionate amount of mortgage money due to the plaintiffs. On 17-12-1943, the plaintiffs brought a suit claiming Rs. 998/- as the price of the paddy grown on the land in the year in which dispossession took place. This claim was based on a stipulation in the mortgage bond that in the event of dispossession by the mortgagor, the mortgagee would be entitled to the value of the crop grown on the land in the year in which the dispossession took place by way of damages. The learned Subordinate Judge who dealt with the appeal arising out of the suit in which the plaintiffs claimed Rs. 998/- has quoted the relevant clause in the 'sudbharna' bond and has given the effect of the clause in the following words:
"The appropriate meaning of the recital quoted above would be that in the event of dispossession, the creditor would be entitled to sue for the principal mortgage money together with damages' on produce basis at the rate of the produce of the surrounding lands."
Learned Counsel appearing before us have not challenged the correctness of the aforesaid observations of the learned Subordinate Judge, The claim of the plaintiffs in that suit was allowed in part on 17-5-1945, the learned Munsif of Araria holding that the plaintiffs were entitled to the amount claimed subject to a deduction of 331/3 per cent. as costs of cultivation. An appeal to the District Judge was dismissed. There was then a second appeal to this Court. A Bench of this court remanded the appeal for being re-heard with a direction that the recitals in the document and the pleadings of the parties should be carefully examined with a view to understanding the nature of the claim and the scope of the suit. The appeal was then re-heard by the Subordinate Judge of Purnea who by his decision dated 8-6-1949 dis-missed the appeal, again holding that the claim of the plaintiffs was maintainable by reason of the stipulation in the 'sudbharna' bond referred to above.
The learned Subordinate Judge held that the 'sudbharna' bond in question was not a pure usufructuary mortgage but was a combination of a simple mortgage and a usufructuary mortgage. He referre'd to Section 98, T. P. Act, and held that in the case of an anomalous mortgage, such as the "sudbharna' bond in suit is, the rights and liabilities of the parties shall be determined by their contract as evidenced in the mortgage deed. Second Appeal No. 1677 of 1949 is from the aforesaid decision of the learned Subordinate Judge dated 8-6-1949 and has been preferred by the defendant first party.
3. On 26-7-1946 the plaintiffs filed another suit. This time they claimed their share of the principal mortgage money (Rs. 912-8-0) together with compensation or mesne profits for the years 1352, 1353 and part of 1354 M. S. The total claim laid was for a sum of Rs. 3,498/- and the plaintiffs wanted a mortgage decree for this amount. Both the suits were principally contested by the defendants first party. A number of pleas were raised by way of defence. In the present appeals we are concerned with those pleas only which raise questions of law. One of such pleas was that the claim in the second suit was barred under the provisions of Order 27 Rule 2, Civil P. C. There was also a plea that the dues under the 'sudbharna' bond had been satisfied by reason of an adjustment entered into by the parties on 14-4-1943. This plea of adjustment was not accepted by the Courts below, and it being a question of fact cannot be agitated in second appeal.
The learned Additional Subordinate Judge who dealt with the second suit (Title Suit No. 29 of 1946) held that no part of the claim was barred under Order 2, Rule 2, Civil P. C. He accordingly allowed a mortgage decree for Rs. 912-8-0; but instead of giving compensation or mesne profits, he allowed interest at the rate of 9 per cent. per annum from the year 1352 M. S. till the date of the suit. Against this decision an appeal was preferred which was heard by the learned Additional District Judge of Purnea who by his decision dated 9-4-1948, held that the provisions of Order 2, Rule 2, Civil P. C., 'were a bar to the claim of the plaintiffs. In that view of the matter he allowed the appeal, dismissed the suit of the plaintiffs and also dismissed a cross-objection which the plaintiffs had filed with regard to their claim for compensation and mesne profits. Second Appeal No. 1112 of 1948 has been preferred to this Court from the aforesaid decision of the learned Additional District Judge of Purnea dated 9-4-1948.
4. Having set out the facts in some detail, now proceed to a consideration of the two appeals on merits. I take up first Second Appeal No. 1112. of 1948 in which the plaintiffs are the appellants. The only question of law which has been agitated before us in this appeal is whether the learned Ad-ditional District Judge was right in his view of the effect of the provisions of Order 2, Rule 2, Civil P. C. It is necessary to read first those provisions:
"Order 2, Rule 2: (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 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."
5. Learned Counsel for the appellants has con-tended before us that in the circumstances of the case it should have been inferred, as the learned Additional Subordinate Judge inferred, that leave of the court was impliedly given to bring a fresh suit for the principal mortgage money, within the meaning of Sub-rule (3) of Order 2, Rule 2, Civil P. C. It is pointed out that in the plaint of the first suit instituted on 17-12-1943, the plaintiffs expressly reserved the right of filing a separate suit for the principal money due. The learned Additional District Judge pointed out, however, that a mere statement in the plaint that the plaintiffs reserved the right to bring a separate suit for the principal mort-gage money did not and could not amount to "leave of the court" within the meaning of Sub-rule (3) of Rule 2 of Order 2, Civil P. C. He further pointed out that the judgment of the trial court in the first suit and on the appellate court in the appeal arising therefrom, clearly showed that the court had not granted leave to the plaintiffs to omit or relinquish a part of his claim or some of the reliefs in respect of the same cause of action.
The appellate court, whose attention was drawn to the provisions of Order 2, Rule 2, Civil P. C., made an observation that any future claim for recovery of the mortgage money might be barred under Order 2, Rule 2, Civil P. C. Such an observation could not have been made by the appellate court in relation to the first suit, if the court had granted leave by necessary implication. Learned, Counsel for the appellants has drawn pur attention to certain observations in -- 'Hare Krishna v. Umesh Chandra', AIR 1921 Pat 193 (FB) (A).
Dawson Miller, C. J. made the following observation at page 195 of the report:
"In the peculiar circumstances of this case I do not think it can be successfully contended that Order 2, Rule 2, has any application, and, even if it should be held that the rule applies in a case where a suit for partition is brought and a subsequent claim is put forward in another suit claiming the whole of the property, nevertheless, having regard to the manner in which the parti-tion suit was framed and the relief there claimed I think it must be assumed in the absence of any evidence to the contrary that the court treated the case as one in which all questions relating to the plaintiff's claim for a declaration of title to the whole property were to be decided hereafter, and that what was done was done by the leave of the court under Clause (3) of Rule 2."
The facts of that case were, however, entirely different The plaintiff's right to an eight annas share in an estate having been recorded in a settlement under the Santal Parganas Settlement Regulation, he sued for partition of his share. In the plaint he stated that he had also claimed the entire estate in a suit which was then pending in appeal and prayed that a temporary partition should be made upon the terms that it should be annulled if the appeal resulted in plaintiff's favour but should become permanent if the appeal should be dismissed. The court decreed the claim for partition without stating whether it was to be temporary or permanent. In these circumstances it was held by Dawson Miller, C. J. and Bucknill, J., Mullick J., dissenting, that having regard to the manner in Which the partition suit was framed and the relief there claimed it must be assumed that the court had granted the plaintiff leave under Order 2, Rule 2(3), Civil P. C. to reserve for subsequent decision the question whether he was entitled to the whole of the estate or not. The facts of that case were, therefore, peculiar and in those peculiar circumstances, leave of the court was inferred.
I do not think that having regard to the pleadings of the parties, and the judgments of the trial and appellate Courts' in the first suit, an inference by necessary implication arises in the present case that in the first suit the court had granted leave to the plaintiffs to bring a fresh suit for the principal mortgage money. The learned Additional District Judge was right in his view that leave of the court by necessary implication cannot be availed of by the appellants in the present case.
6. Learned counsel for the appellants has then . contended that Order 2, Rule 2, Civil P. C., does not apply, because the claim for the principal mortgage money was founded on a different cause of action, and not the same cause of action which gave rise to the claim for compensation in the first year of dispossession. Learned Counsel has submitted that the claim for compensation in the first year of dispossession, was founded on dispossession, whereas the claim for the principal mortgage money was founded on non-payment of the appellants' share of the mortgage money on the due date, that is, Chait 1347 M. S. It is well settled that if the. claims or reliefs are not in respect of the same cause of action, Order 2, Rule 2, Civil P. C. will have no application; therefore, the critical question is if the two claims arise out of the same cause of action. In my opinion, both the claims arise out of the same cause of action, namely, dispossession, on 14-4-1943, and the plaintiffs appellants should have included the whole of the claim which they were entitled to make in respect of their dispossession on 14-4-1943.
Let us examine a little more closely the terms of the 'sudbharna' bond so far as they bear upon this question. It is true that the due date of repay-ment of the balance of the principal mortgage money was Chait 1347 M. S. The bond stipulated, however, that in case of default, the mortgagees could either sue for the money remaining unpaid or continue to remain in possession. In other words, an option was given to the mortgagees. The mortgagees exercised that option and remained in possession for about two years or so; then they were dispossessed on 14-4-1943. I have already quoted the observations of the learned Subordinate Judge as to the effect of the recital in the 'sudbharna' bond with regard to dispossession; the 'sudbharaa' bond clearly stated that in the event of dispossession the creditor would be entitled at once to sue for the principal mortgage money together with damages on produce basis at the rate of the produce of the surrounding lands. Therefore, the claim, of the plaintiffs appellants for the principal mort-gage money as also their claim for compensation was in respect of the same cause of action, namely, dispossession on 14-4-1943. It was by reason of that dispossession that the plaintiffs appellants were entitled to claim both the principal mortgage money as also compensation.
If, for example, the plaintiffs appellants were not dispossessed on 14-4-1943, they could have claimed neither the principal mortgage money nor compensation; they then would have continued in possession of the mortgaged land as 'Sudbhamadars'. It is true that under the option given to the plaintiffs appellants, they could have sued for the principal mortgage money when the due date of payment expired. They did not, however, exercise that option; on the other hand, they elected the other alternative and continued to remain in possession of the mortgaged lands. That being the position, both the claims, namely, those of compensation and the principal mortgage money were in respect of the same cause of action. Having omitted part of their claim in respect of the same cause of action when they brought the first suit, the plaintiffs appellants cannot now be allowed to sue in respect of the claim so omitted. The learned Additional District Judge was right in his view that Order 2, Rule 2, Civil P. C., applied with regard to the claim in the subsequent suit
7. The learned Additional Subordinate Judge also referred to Order 34, Rule 44, Civil P. C. Mr. B. P. Samaiyar who has argued the appeal on behalf of the plaintiffs appellants has not relied on the pro-visions of Order 34, Rule 14, Civil P. C. It is not necessary, therefore, to deal with Order 34, Rule 14, Civil P. C. in any great detail. It is sufficient to state, as has been observed in some decisions (see --"Govind Hari v. Parashram Mahadev', 25 Bom 161 (B)), that Order 34, Rule 14 relieves the mortgagee only from the restrictions imposed by Order 2, Rule 2, Civil P. C. on the splitting of remedies; the restriction as to the splitting of claims is not relieved by it. Order 34, Rule 14, Civil P. C. is principally for the benefit of the mortgagor so that the equity of redemption may not be sold at an unduly low price or by depriving the mortgagor summarily of his right of redemption without giving him any of the facilities which an ordinary suit for sale ensures. To hold that the provisions of Order 34, Rule 14, Civil P. C. entitle the mortgagee to split up his claim in supersession of Order 2, Rule 2, Civil P. C. will enlarge the powers of the mortgagee and be contrary to the object of the provisions. The plaintiffs might have asked for a mortgage decree for the amount of compensation decreed in the first suit, and to that extent Order 2, Rule 2, Civil P. C. will not stand in their way, But they could not split up their claim arising out of the same cause of action.
8. For the reasons given above, I would hold in Second Appeal No. 1112 of 1948 that the decision of the learned Additional District Judge dated 9-4-1948 is correct and the appeal must be dismissed with costs.
9. As to Second Appeal No. 1677 of 1949, I see no reason why the plaintiffs should not get damages for the first year of dispossession which they claimed in the first suit, on the strength of the terms of the 'sudbharna' bond. The plaintiffs then omitted to sue for the principal amount and for future compensation till the principal amount was paid; for such omission they have already paid the penalty. But surely a double penalty cannot be imposed on them. Under Order 2, Rule 2, Civil P. C. it is open to a plaintiff to relinquish a portion of his claim. Order 2, Rule 2, Civil P. C. does not contemplate, the imposition of a double penalty.
10. As to the second question whether under the terms of the 'sudbharna' bond, the plaintiffs were entitled to compensation, there can be no doubt that they were so entitled. The learned Subordinate Judge, as the first appellate Court, has quoted the relevant terms in extenso and it is clear that on dispossession the plaintiffs were entitled to claim the principal mortgage money as also compensation: The 'sudbharna' bond was clearly an anomalous mortgage and the rights and liabilities of the parties must be determined by their contract as evidenced in the 'sudbharna' bond.
11. Therefore, the conclusion in this second appeal also is that the learned Subordinate Judge was right in dismissing the appeal of the defendants first party. The second appeal preferred by defendant 1 to this Court is without merit and must be dismissed with costs.
12. In the result, both the appeals fail, and are dismissed with costs.
Banerji, J.
13. I agree.