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The acceptance of a vakalutnama should be unconditional in all cases-Gopeenath Mudduck, petitioner, 14 W. R., 7.

No fresh vakalutnama is necessary to appear in any proceedings subsequent to decree, even in such as an appeal to the Privy Council-Shah Mukhun Lall vs. Ŝreekisen Singh, 8 W. R., 92, or an application for a new trial-Sutto Churn Ghosal petitioner, 13 W. R., 465, or for execution of decree, or to answer a claim put forward under section 246 of Act VIII, 1859-Gopal Joya Chand vs. Har Govind Khushal, 5 Bom., 83, or to appear in a remanded case, 4 Mad., xliii.

Service of process on pleader.

40. Processes served on the pleader of any party or left at the office or ordinary residence of such pleader, relative to a suit or appeal, and whether the same be for the personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the pleader represents; and, unless the Court otherwise directs, shall be as effectual for all purposes in relation to the suit or appeal as if the same had been given to or served on the party in

person.

This section applies to H. C. and M. S. C. C.

Service of notice of appeal upon respondent's pleader is good service on himIshur Dutt Mundul vs. Shib Pershad Thakoor, 15 W. R., 290. So also is service of summons calling on a party to appear and give evidence-Shivrudrappa vs. Kashinath Vishnu, 6 Bom., 141,

cess.

pro

41. Besides the recognized agents described in section Agent to receive 37, any person residing within the jurisdiction of the Court may be appointed an agent to accept service of process. Such appointment may be special or general and shall be made by an instrument in writing signed by the principal, and such instrument, or, if the appointment be general, a duly attested copy thereof, shall be filed in Court. This section applies to H. C. and M. S. C. C.

His appointment to be in writing and to be filed in Court.

CHAPTER IV.

OF THE FRAME OF THE SUIT.

42. Every suit shall, as far as practicable, be so framed as to afford ground for a final decision upon the subjects in dispute, and so to prevent further litigation concerning them.

Suit how to be framed.

This section applies to H. C.

Suit to include whole claim.

43. 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.

If a plaintiff omit to sue in respect of, or intentionally reRelinquishment of part linquish, any portion of his claim, he shall not afterwards sue in respect of the portion

of claim.

so omitted or relinquished.

Omission to sue for one of several remedies.

A person entitled to more than one remedy in respect of the same cause of action may sue for all or any of his remedies; but if he omits (except with the leave of the Court obtained before the first hearing) to sue for any of such remedies, he shall not afterwards sue for the remedy so omitted.

For the purpose of this section, an obligation and a collateral security for its performance shall be deemed to constitute but one cause of action.

Illustration.

A lets a house to B at a yearly rent of Rs. 1,200. The rent for the whole of the years 1881 and 1882 is due and unpaid. A sues B only for the rent due for 1882. A shall not afterwards sue B for the rent due for 1881.

As to the last paragraph, see the

This section applies to H. C. and M. S. C. C. transfer of property Act (Act IV of 1882), section 99.

Cases arise where the acts complained of may not have been all done together, and yet they may give rise to only one cause of action. The leading case on this point is that of Shamsoonissa Begum vs. Buzl-ul Rohim, Marsh., 286, in which plaintiff sued for a piece of Government paper made over to defendant on a specified date, and it was contended that the suit was barred, as after the alleged act of misappropriation plaintiff had instituted a suit for the recovery of property which she had entrusted to the defendant, and that the latter suit should have been included in the former. The High Court considered, among other things, that they were separate causes of action, and decreed the claim. This decision was reversed in the Privy Council. Their Lordships said:-"In their Lordships' opinion the only ground on which (if at all) the judgment of the High Court could be sustained, is that which is somewhat doubtingly expressed by the Judges in the following sentence:-Nor do we think that, under the circumstances of the case, the plaintiff may not fairly plead that she has a distinct and separate cause of action for the recovery of this piece of paper made over to the defendant on a particular date.' Their Lordships think the correct test in all cases of this kind is whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation of the former suit, and they have accordingly considered whether the present suit can be maintained on that ground. But the cause of action in the former suit of the respondent seems to them to be the refusal by the husband to restore, or his misappropriation of the wife's property, which she says she entrusted to him. There is nothing to distinguish the deposit of this particular company's paper from the deposit of those which she deposited with it, and has recovered in the former suit. It was a mere item of her demand, and is admitted on the face of her present plaint to have been omitted from it for no other reason than the very insufficient one before mentioned. If she was justified in instituting a separate subsequent suit for this particular company's paper for 10,000 rupees, she would have been equally justified in making each one of the company's papers which are comprised in the property suit successively the subject of an independent suit. Their Lordships are of opinion that the ruling of the Zilla Judge on this point was correct, and that the suit was properly dismissed "-11 Moore, 604; 8 W. R., P. C., 12; Marsh., 286. The rule derived from this case is that where the parties are the same and the act is one, such as the conversion of several securities delivered at different times, there is only one cause of action.

A suit for moneys, alleged to have been misappropriated by defendant as manager of a joint family, will bar a subsequent suit for corn or other moneys misappropriated by the same defendant-Radha Kishoree Debia vs. Ram Kumar Chowdhry, 12 W. R., 79; Ganes Chunder Chowdhry vs. Ram Kumar Chowdhry, 3 Ben., 265; and a suit for unlawfully taking cattle, or for their value should include any claim for damages caused by the wrong

ful act-Shaik Punju vs. Shaik Oodoy, 18 W. R., 337; Mohubut Mundul vs. Shoorendra Nath Rog, 4 W. R., Ref, 20; a suit for demurrage on account of the detention of a boat must claim all the demurrage due-Munghroo Manghee vs. Gya Ram Nundee, 14 W. R., 253; a suit for mesne profits, or the value of fishes taken out of a tank, bars a subsequent suit for mesne profits before the date of the first suit-Rookminee Kooer vs. Ram Tohul Roy, 21 W. R., 223 Saem Sirdar vs. Kamuluddy, 22 W. R., 426.

:

Plaintiff having gained a suit for specific performance of a contract to convey, brought a subsequent suit claiming damages at the rate of 8 per cent. on the purchase-money prematurely paid. Held, that the suit was barred by section 7 of Act VIII of 1859; and that the suit could not be considered a suit for mesne profits within section 10, Act VIII of 1859 -Shib Kristo Dah vs. Abdool Sabhan, 15 W. R., 408.

A suit against a mortgagor to establish a lien over the mortgaged property does not prevent a subsequent suit by the same party against attaching creditors of his mortgagor to declare his lien over surplus sale proceeds in the hands of the Collector assessing out of a revenue sale before the first suit-Kristodass Koondoo vs. Ramkant Roy, I. L. R., 6 Cal., 142, but a suit on account of surplus sale proceeds bars a subsequent suit for deductions from those sale proceeds on account of rent which defendant had failed to pay-Tarinee Pershad Ghose vs. Khoodoo Monee Debia, 13 W. R., 261; and a suit for sale proceeds as representing a putnee talook against persons wrongfully in possession, bars a subsequent suit for mesne profits or compensation-Tarinee Pershad Ghose vs. Raghub Chunder Banerjee, 13 W. R., 203. A putnidar sued his zemindar for damages for inducing him to take a talook on false representations, and obtained back a portion of the purchase-money and compensation for loss of profits. It was held that he could not, in a subsequent suit, recover the amount of so-called excess of rent paid by him under the lease, as he should have sued for all his damages in the first suit-Nilmonee Singh Deo vs. 1shur Chunder Ghossal, 9 W. R., 121.

A suit for possession of property does not bar a second suit to recover money paid as compensation under the Land Acquisition Act to the defendant after the institution of the first action-Nund Lall Bose vs. Meer Aloo Mahomed, I. L. R., 5 Cal., 597.

A party holding a decree for possession and partition, may bring a new suit for mesne profits which accrued prior to the decree-Chowdhry Imdad Ali vs. Boonyad Ali, 14 W. R., 92.

Where a plaintiff sued for and obtained damages against one of several persons who joined together in defaming his character, it was held that a similar suit by the plaintiff against another wrong-doer would not lie-Madud Ali Khan vs. Saleem Ahmed Khan, 4 Alla., 142.

In those Courts in which an heir is allowed to sue several alienees, the question may arise whether, omitting to sue any one bars a subsequent action against him, or whether though he may sue them all, he is not bound to do so. The latter seems correct. Thus, plaintiff sued to prove a right in and obtain possession of 17 villages, and to cancel certain instruments of gift and sale, but omitted to implead the mortgagees of three of those villages, or to sue to set aside the mortgage deeds. Subsequently, he brought a fresh suit to do so. A majority of the N. W. Sudder Court held that the temporary or permanent character of the alienation did not leave it optional with him to include them in, or exclude them from, his first suit; each alienation, permanent or otherwise, was prima facie equally unlawful and constituted a cause of action. But that when the plaintiff elected to sue for the whole property at once, and to avoid the alienations which jeopardized it, he was bound to sue for the avoidance of all the alienations which gave him a common cause of action. This decision was set aside by the Privy Council. Their Lordships said:-"Now the first suit as has already been shown, was brought against various defendants to impeach certain aljenations made by the widow and mother of Rao Dhuleep Sing. They were alienations by which the inheritance, subject to the interests of those persons, was transferred to certain foster sons or near relations or dependents of the two ladies, so as to exclude the remoter heirs. The suit with which their Lordships are now dealing was brought to set aside a mortgage, which had been granted by these ladies to the respondent's ancestor in this case before the alienations which were the subject of the other suit. It no doubt appears in the description of the property which was the subject of the first suit, that three of the villages, forming part of that property, were subject to the mortgage now in question, and the name of the mortgagee is mentioned. But it appears to their Lordships that the causes of action in the two cases were essentially different; in the one case the widow and mother, assuming an absolute power of disposition, had granted the inheritance in portions of the estate to the defendants in the first suit. In the other case the issue was, whether they had duly exercised the limited power which belongs to a Hindu female, having a Hindu female's right of inheritance in the estate, of charging the estate for certain defined purposes. The only ground upon which it can be plausibly contended that these two claims, against distinct persons and of a very distinct nature, really form part of one cause of action, is founded on the circumstance that in the first suit the defendant sued for the possession of the lands; the argument being that mortgagees being parties then in possession, the suit for possession of the lands ought to have contained a prayer for setting aside the mortgages. It is to be observed that the suit, though in form a suit for the possession, was not properly brought and could not be properly brought at the time it was first instituted, for that purpose. The prayer for possession was, if things had remained as they were when the suit was first instituted, one which could not have been granted. But the substance of the suit really was, as has been stated in the judgment delivered in the other appeal, to have these alienations of inheritance, which, if not impeached, would have been fatal to the claim of the plaintiff as reversionary heir, set aside

and declared invalid. That object was, as their Lordships think, perfectly distinct from that which is the object of the present suit, which is to have their mortgages declared invalid as against the person who has in the former suit established his title to the possession of the estate as heir, on the ground that they were securities which those who granted them had not the power to grant as incumbrances upon the inheritance"-Rao Kurun Sing vs. Mahomed Fyzali, S. D., N. W., 1866, p. 88; 14 Moore, 196. The rule laid down in this case is "that the true test of the proper application of this section to any particular case must be whether there has been a splitting of the cause of action," and in determining this, the Courts must be guided by the object of the suit and the issues raised in it-14 Moore, 197, 198. So in a suit for partition, a certain field in the possession of a mortgagee was not included. It was subsequently redeemed by the opposite party, and remortgaged. Held, that the claim was not barred by section 7, because the mortgaged land was not available for partition when the former suit was brought-Narayan Babaji Dabholkar vs. Paudurang Ramchandra Dabholkar, 12 Bom., 148. So also a suit on a mortgage bond against the mortgagors does not bar a subsequent suit to enforce the mortgage lien against subsequent mortgagees-Bungser Singh vs. Sudiat Lal, 10 C. L. R., 263.

A Muhammadan widow alienated her husband's property by two different deeds, to different persons at different times. Two suits were brought by the heirs of the deceased; the first to set aside the second alienation, the second to cancel the first. It was pleaded that section 7 barred the second suit, but a Full Bench held not, and said: "The expression, cause of action, taken in its widest sense, includes everything that is requisite to show that the action is maintainable. Every such fact and circumstance is part of the cause of action. In another sense the expression 'cause of action' may be and perhaps is more strictly confined to the one fact or circumstance which gives the plaintiff a present right to sue-the act of alienation by a Hindu widow of the estate derived from her husband, or the breach of a contract. In whichever sense the words are interpreted in the section under consideration, we are of opinion that it cannot properly be said that in the case before us the plaintiff's cause of action against the widow and against her alienees is one and the same. As against the widow, the cause of action is based on the fact that she made an alienation of the inheritance in excess of her interest. As regards an alienee, the cause of action arises from the circumstances that the possession of a part of the inheritance is wrongfully withheld. Although the alienation may have been wrongful, it does not follow that an heir is entitled to recover possession from the alienee.. ....To apply these conclusions to the case before us, the plaintiff sued on the same title in the former and in the present suit, and the question as to the widow's right to alien arose equally in each case. But the sales were distinct, different lands having been sold at different times to different purchasers ...The Court adopts as applicable to this view.........that each alienation constitutes a distinct cause of action, and that it was not obligatory upon the plaintiffs to make each separate purchaser or mortgagee a party to the former suit upon pain of forfeiting all future right of suit against him by reason of such omission. We think that a plaintiff complies with the requirements of this section who includes in his suit all that he claims from his opponent, and that it is not requisite that he should in the same suit bring before the Court third persons who are no further interested in the principal matter in dispute than that they may have acquired, by mortgage or purchase, some claim or right to a portion of the property. Whether such a mortgagee or purchaser may not well be made a defendant in the first suit brought, and what may be the disadvantage of not framing the suit in such a mode that by one and the same decree all rights may be at the same time adjudicated, are distinct questions from the one which has been referred to us"-Mussamut Jehun Bibee vs. Sairak Ram, 1 Agra, F. B., 109. In a later case this doctrine was carried a step further. B sued for an 8 annas share in lands purchased in the name of his eldest brother, on the ground that they were members of a Hindu joint family. Subsequently, the defendants were both plaintiffs and defendants in a suit in which M sued for himself, and as heir of B, for 12 annas share-4 in his own right, and 8 on account of B-in other lands which had been bought in the name of N; it was argued that, B not having included these lands in his suit, M's right as heir was barred. Their Lordships held not. They said:-" Now Bulloram was suing in respect of property purchased in the name of Gridhur Mondul which he claimed to be joint property, in respect of which he was entitled to a share. But the present suit has to do with other property which was bought in the name of Mokoondram, at another time, and it appears to their Lordships that those are not the same cause of action, and that the present claim to property purchased in the name of Mokoondram is no part of the claim arising out of the cause of action in respect of other property purchased in the name of Gridhur"-Ram Hurry Mondul vs. Mothoor Mohun Mondul, 20 W. R., 450.

A, as plaintiff's guardian, held 8 annas in a village which she sold to M. Subsequently, A, and D the husband of M, sued trespassers for some lands in the village and got a decree. In appeal, A filed a solenamah, but the decree was upheld save as to mesne profits to A. M took out execution in 1867, and got possession of the land. Meantime, in 1862, plaintiff, attaining majority, sued his guardian and M to set aside the sale and succeeded. Afterwards he brought a second suit for his share of the land of which M had obtained possession in execution; it was held not barred, as the first suit was to set aside a specific alienationRamlochun Lall vs. Goorpershad, 5 Alla., 172.

A got a money decree on a mortgage bond, and then sued a purchaser of part to enforce his lien. Subsequently, he brought a second suit against the purchaser of the remainder. It was held that he might have sued, but was not bound to sue, for the whole property in one suit, since it was held by different parties under separate title-deeds

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Huree Mohun Poramanick, 15 W. R., 486: see also Raja Ram Tewary vs. Luchman Pershad, 8 W. R., 15. And although a creditor has a right to make all the property of the deccased debtor in the hands of several persons liable for the payment of his debt, he is not bound to include all of them and the whole of the property in one suit-Purumsukh vs. Soobhan, 2 Agra, 323. In a later case, the High Court in Calcutta carried the doctrine much further than any of the other Courts. Thus, where a lessee resumed certain lands according to his lease, on behalf of his landlord; but, after the expiry of his lease, retained them in his own possession, and also certain other portions of the land that had been leased to him; it was held that, though the title was the same, the cause of action to obtain the lands was not; that in one case it was that the lessee had not, as he was bound to do, given the lessor the benefit of the resumptions and injuriously retained the resumed lands; in the other, that he had improperly retained the lands leased, and that one suit did not bar the other-Doorga Nath Roy vs. Roy Kalee Narain Roy, 24 W. R., 212.

Where an auction-purchaser, entitled to be paid in one currency, sued for the amount in another, he was held barred from suing for the difference-Meer Mahomed Soaduck Golestan vs. Forbes, 5 W. R., Act X., 90.

Each instalment of rent-Kristo Kinkur Poramanick vs. Ram Dhun Chettangia, 24 W. R., 326; Ram Sundur Sein vs. Krishno Chunder Gupta, 17 W. R., 380; Sutto Churn Ghosal vs. Obhoy Nund Doss, 2 W. R. (Act X.), 31, or of money due on a bond, is a separate cause of action-Bolakee Lall vs. Bungshee Singh, 7 W. R., 309; but a suit for one instalment of rent bars a subsequent suit for any instalment due before to the filing of the plaint-Taruck Chunder Mookerjee vs. Panchu Mohini Debia, I. L. R., 6 Cal., 791.

A suit for one book debt does not bar a second suit for another, though both are payable on the same day, when they become due on different contracts-Dyaram vs. Gouree Shunker, 3 Alla., 20. As regards rent, a different rule seems to prevail in Madras A sued on a verbal agreement by which the defendant bound himself to deliver 30 kahuns of paddy in October 1866, 20 kahuns in February 1867, 30 kahuns in October 1867, and 20 kahuns in February 1868, in consideration of plaintiff permitting him to occupy certain land from April 1866, to March 1868. Defendant pleaded that there were four separate causes of action. The High Court held there was only one cause of action. The Judges said:Although each item in the payments stipulated for in the lease constitutes a debt, the aggregate of such items constitutes but one cause of action, the distinction between an agreement consisting of various items which are intended to form one entire demand on the one hand, and several distinct and independent claims on the other, being clear and undoubted. In Grimbly vs. Aykroyd, 1 Exch., 479, it was held that where one item is connected with another in this sense that the dealing is not intended to terminate with one contract, but to be continuous, so that one item if not paid shall be united with another and form one entire demand, the plaintiff cannot split these items into separate causes of action, but must sue upon the aggregate amount. Here plaintiff was the lessor and defendant the lessee of certain lands for the term of the agricultural years 1866-68. The dealing was continuous for 2 years, and though plaintiff of course might have sued for each item or instalment of rent as it fell due, the aggregate of two or more of such unpaid instal. ments cannot be divided into two or more causes of action, but must be deemed one cause of action"-Chakalinga Pillat vs. Kumark Virut Laham, 4 Mad., 334. The case as reported does not show that the parties intended that one item if not paid should be united with another to form one entire demand and is not usually followed in Bengal-Ram Soonder Sein vs. Krishno Chunder Goopto, W. R., 380. See, however, Mackintosh vs. Gill, 12 B. L. R., 37. But where the real cause of action is single as regards the whole claim, two suits cannot be instituted at the same time, namely, one for the rent up to a certain date, and the other for the rent of a subsequent period-Syed Ahmed Ally vs. Hay, Suth. S. C. Ref., 63.

A suit for the recovery of a receipt, pledged as a security for an advance, does not bar a suit between the parties for a balance due on the whole account between them; for in the first case it was not necessary to go into the account, but only to see if the money advanced had been repaid-Nawab Mehdi Ulla Khan vs. Mahomed Wajid Allee, 1 Alla. 70. A suit to redeem does not bar one for mesne profits between the date of suit and execution of decree-Baloo Gour Kishen Sing vs. Sahoy Fukeerchand, 7 W. R., 364; but a suit to redeem, on the ground of the mortgagee being overpaid, bars a subsequent suit for the overpayment-Baloji Tamar Pothai vs. Tamansuda Ghanyanu Goudh, 6 Bom., 97.

Plaintiff sued for mesne profits and possession, but his suit was dismissed. He appealed only as to possession, and got a decree: Heid, that as he was not bound to sue for mesne profit and possession this section did not bar him suing for mesne profits afterwards. The effect of section 2, Act VIII, 1859, was expressly excluded by the Court-Pratap Chunder Burua vs. Rani Swarnamayi, 4 B. L. R. (F. B.), 113.

Plaintiff sued for land and failed. It was held that he could not bring a second action by merely alleging that the Collector's order sought to be set aside was of a different date and description from that which was sought to be set aside in the former suit-Luchman Dsos vs. Priag Dutt, 2 Agra, 305. So where plaintiff sued for possession of land and failed and a month afterward brought a fresh suit, with this difference that in the first suit he alleged that two widows were dead; in the second that one was alive but incapable of inheriting being unchaste, and that a certain kabala was a forgery; the second suit was not allowed-Abhoram Dass vs. Sriram Das, 3 Ben., 421.

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