Authored By : Richard Garth, Arthur Wilson

Richard Garth, C.J.

1. The question referred to us in this case is, whetherhaving regard to Section 43 of the Code this suit is maintainable. The factsare these:

On the 8th of December 1882 the defendant contracted withthe plaintiffs to purchase from them 10 bales of Turkey red yarn at a certainprice.

2. In February 1883 three of these bales were delivered andpaid for.

3. On the 21st of June 1883 the plaintiffs say that theydelivered four more bales, and this action is brought for Rs. 1,683-8-0 beingthe contract price of those bales.

4. On the 14th of August 1883 the plaintiffs sued thedefendant to recover Rs. 166-10-3 as damages for the non-acceptance by thedefendant of the remaining three bales, and on the 9th of January 1884, theyobtained a decree for that sum.

5. On the 11th of January 1884 the present suit was brought.

6. A preliminary objection was taken, that the Court had noright to entertain the suit, inasmuch as the plaintiffs present claim, and theclaim in their former suit constituted the same cause of action.

7. The learned Judge in the Court below was of opinion thatthe objection was not valid, but he referred the question to this Court beforetrying the case upon its merits.

8. I think that the learned Judge is right.

9. I have always considered that a claim for the price ofgoods sold, which is essentially a claim for a debt, is a cause of action of adifferent nature from a claim for compensation for not accepting goods pursuantto contract, which is essentially a claim for damages. The two claims appear tome to be of a totally different nature, and the fact of their arising under thesame contract does not change their nature, or make them one and the same causeof action.

10. Claims by a shipowner for freight, and for not loading aship pursuant to contract, constantly arise under the same charter party, butit could hardly be contended that the two claims would therefore constitute onecause of action.

11. No doubt claims under the same contract for severalinstalments of the same rent, or for several instalments of the same promissorynote have been held over and over again (under Section 43) to be claims for thesame cause of action see the cases of Taruck Chunder Mookerjee v. Panchu MohiniDebya I.L.R. Cal. 791; Sheo Sunker Sahoy v. Hridoy Narain I.L.R. Cal. 143 andMackintosh v. Gill 12 B.L.R. 37.

12. The claims in these cases are not only of the samenature, but are virtually for instalments of the same debt or obligation; andthe illustration given in Section 43 seems to me to show that these are thesort of cases to which the section is intended to apply.

13. Under Section 63 of the English County Court Act (9& 10 Vict. c. 95) the Courts have gone further and have held that severaldebts of the same nature, though strictly speaking arising out of severalcontracts, form part of the same cause of action when they are of the samenature, and arise out of the same course of dealing, as for instance, claimsupon a tradesmans bill where although each item of the account may haveaccrued due at a different time the whole bill has been treated by the partiesas one entire claim see Grimbly v. Aykroyd 1 Exch. 479 : 17 L.J.N. 157.

14. But where the several debts included in the account arenot of the same nature, as for instance, where one item of an account is forthe price of a horse and another is for rent, and another for goods sold, thereit has been held that several suits may be brought in the County Court,although the claims might in the superior Court have all been included in anindebitatus count. See Neale v. Ellis 1 D. and L. 163 and Kimpton v. Willey 1L.M. P. 280 : 19 L.J.C.P. 269.

15. The case of Brunskill v. Powell 1 L.M P. 550 : 19 L.J.E. 363 is a very remarkable illustration of this distinction. There theplaintiff, a publican, had been in the habit of supplying the defendant fromtime to time with liquors, and also with small sums of money as he requiredthem, and he had sent in to the defendant one entire account showing what sumswere due for liquors, and what for money lent. As the defendant did not pay,the plaintiff sued him in the County Court, first in one suit for the liquors,and afterwards in another suit for the money lent. It was held by the Court ofExchequer that the claims for liquors and for money lent, although,undoubtedly, they might, in the superior Court, have been included under onecount, did not constitute one cause of action, and that the plaintiff was atliberty to bring separate suits.

16. I have looked very carefully through the Englishauthorities, but in vain, for any case, which would, either directly orindirectly, favour the defendants view of this question.

17. In the case of Grimbly v. Aykroyd above cited ChiefBaron POLLOCK takes some pains to point out the inconvenience on the one handof construing the words "cause of action" to mean "cause ofaction on one separate contract," and on the other hand of construing themso as to include "all contracts executed " which could be Sued for inone indebitatus count. But it never has been suggested in England, so far as Iam aware, that a claim upon an executed contract, such as a debt, is the samecause of action as a claim upon an executory contract for damages.

18. The Court of Exchequer accordingly held in the case Ihave just mentioned that Section 63 of the Act did apply to the cases oftradesmans bills (such as that with which they were then dealing) "inwhich one item is connected with another in this sense, that the dealing is notintended to terminate with one contract, but to be continuous, so that one itemif not paid shall be united to another and form one entire demand."

19. I quite admit that in actions founded on contract themost diverse causes of action might, under the English system of pleading, haveformed the subject of one and the same special count; but it was neversuggested on that account that these diverse claims could be considered in anysense the same cause of action.

20. Thus in an action upon a lease, claims might have beenmade in the same count,

1st, for rent; 2nd, for not repairing the demised premises;3rd, for not paying rates and taxes; 4th, for not insuring the premises fromfire; and 5th, for improperly cutting down trees.

21. But no one ever heard, so far as I am aware, of any twoof these claims being considered as one cause of action.

22. I have looked through all the reported cases that Icould find, and all the English as well as Indian Digests, for any authoritythat a claim for debt and a claim for damages, though arising out of the samecontract, has ever been considered as the same cause of action, but I havefound none; and I believe that this is the first occasion on which such aproposition has ever been suggested.

23. The real principle, as it seems to me, which runsthrough all cases is that, if the several items which make up the claim are ofthe same nature and form part of the same course of dealing, so as to passunder the same description and form part of one transaction they must beconsidered as one cause of action and must be joined in one suit though theymay have arisen out of several contracts.

24. But claims which are diverse in character, which do notanswer the same description, and which would require a different class ofevidence to support them, may be made the subject of different suits thoughthey may arise out of the same contract.

25. And I feel very strongly that the introduction of anynew principle upon this subject, which has never been recognised by the Courts,may place numbers of suitors in a very unjust position. The present case, in myopinion,! forms a very forcible illustration of the extreme injustice whichmight be done by interpreting the rule contained in Section 43 so as to compela plaintiff to include in one suit a claim for debt, and a claim for damages.

26. The first suit, brought by the plaintiff for damages fornot accepting the three last bales, depended upon different considerations, andrequired different evidence to support it from that which would be necessary tosupport the present claim.

27. In the former case he could only recover by way ofdamages the difference between the contract price of the bales and their marketprice at the time when the contract was broken; and the sum which he actuallyrecovered as damages in that suit was Rs. 166-10-3.

28. In the present case he would only have to prove the factof the delivery of the four bales. Their price Rs. 1,633-8-0 would beascertained by the contract and if the objection now taken were to be allowed,the defendant would get the four bales for nothing, and the plaintiffs,although guilty of no fraud, and having acted in bringing this suit entirelywithin the principle that has hitherto been recognised by the Courts, would belosers of no less a sum than Rs, 1,633-8-0.

29. The object of these technical rules, as I consider, isto prevent unnecessary litigation, by obliging parties, so far as may beconsistent with justice and convenience, to include all their claims of onenature in one suit. In order to effect this good object, suitors are deprivedof rights, to which they would otherwise be entitled under the general law; andI think we should be very careful, in carrying out such rules to confine theirscope and construction within certain recognised limits and principles so asnot to take suitors unfairly by surprise, and to do as little injustice aspossible in individual cases.

30. It seems to me that if we were to allow the presentobjection to prevail, we should be acting without precedent, and we should betransgressing limits and principles which are now tolerably well known, and bywhich Courts of law have hitherto during a period of some 25 or 30 years beenguided. If in this or any other case a Court of law may consider that aplaintiff has been guilty of improper conduct in bringing two suits instead ofone, (although his doing so may not amount to a breach of the rule laid down inSection 43), the Court would, in my opinion, act quite rightly in showing itssense of such impropriety by depriving the plaintiff of the whole or a portionof his costs.

31. But to extend the application of Section 43 beyond whathas hitherto been recognised as its legitimate scope, would not only in myopinion do a grievous wrong to the plaintiffs in the present instance but wouldbe productive of serious uncertainty in the future.

Arthur Wilson, J.

32. The facts upon which the questions referred to us inthis case arise are very short.

33. On the 8th December 1882 a contract was entered intowhereby the plaintiffs agreed to sell and the defendant agreed to buy ten balesof Turkey red yarn at a certain price. It is not stated in the case when theprice was payable, but during the argument the contract was referred to, andcounsel on both sides agreed that it was forty-five days after delivery.

34. In February 1883 the defendant took delivery of threebales and paid for them. The plaintiffs allege in the present suit that on the21st June the defendant took delivery of four bales more, but has not paid forthem. The remaining three bales the defendant did not take, and on the 14thAugust 1883 the plaintiffs sued the defendant in the Small Cause Court fordamages for not taking them. On the 9th January 1884 the plaintiffs recovered adecree for damages in that suit.

35. The defendant applied for a new trial, but hisapplication on the 9th February was dismissed for default.

36. On the 11th January 1884 the plaintiffs commenced thissuit in which they claim the price of the four bales said to have beendelivered on the 21st June 1883.

37. The main question referred to us is whether, having regardto Section 43 of the Code of Civil Procedure, this suit is maintainable. Thatsection says: "Every suit shall include the whole of the claim which theplaintiff is entitled to make in respect of the cause of action. If a plaintiffomit to sue in respect of any portion of his claim he shall not afterwards suein respect of the portion so omitted," and the question we have to answermay be shortly stated thus: Where there is one contract for the purchase ofgoods, and the purchaser takes some of the goods, but breaks his contract, inpart by not paying for the goods he takes, and in part by not taking and payingfor the remainder, and both breaches occur before any suit is brought, is hisclaim a claim in respect of one cause of action, so that he must include thewhole in one suit, or may he at his pleasure bring two separate suits

38. I think the whole claim arises out of one cause ofaction within the meaning of Section 43 and that only one suit will lie. Theexpression "cause of action" is one frequently used in legislationand not always with the same exact meaning. In one sense every breach of acontract is a separate cause of action. But the illustration to Section 43shows that the framers have not here used the expression in this sense. That illustrationis: "A lets a house to B at a yearly rent of Rs. 1,200. The rent for thewhole of the years 1881 and 1882 is due and unpaid. A sues B only for the rentdue for 1882; A shall not afterwards sue B for the rent due for 1881"; andfollowing the principle embodied in that illustration it was held in TaruckChunder Mookerjee v. Panchu Mohini Debya I.L.R. Cal. 791 that where two yearsrent are due and the landlord sues for the first years rent, he cannotafterwards sue for the second. In Sheo Sunkur Sahoy v. Hridoy Narain I.L.R.Cal. 143 this case was approved and followed.

39. In Mackintosh v. Gill 12 B.L.R. 37 a note was madepayable by instalments, and two instalments being due, it was held underSection 34 of Act IX of 1850 (the terms of which so far as material weresubstantially the same as those of the section before us), that two actionscould not be brought. In the course of the argument Couch, C.J., is reported tohave stated the rule thus:

When, as in this case, there is a single contract andseveral breaches, all the breaches must be included in one action.

40. The same expression "cause of action" has beenused in the successive Acts relating to the jurisdiction of County Courts inEngland in the sections forbidding the splitting of claims so as to bring themwithin the inferior jurisdiction, or multiply suits. Under these sections ithas several times been held that "cause of action" is not limitedeven to claims arising upon one contract, but may include claims upon severalcontracts, provided they form part of a continuous course of dealing, as in thecase of goods supplied from time to time by a tradesman to a customer, thoughnot otherwise Grimbly v. Aykroyd 17 L.J.N.S. Ex. 157 : 1 Exch 479; Kimpton v.Willey 19 L.J.N.S.C.P 269 : 1 L.M. P. 280; Bruns kill v. Powell 19 L.J.N.S. Ex.363 : 1 L.M P. 550; and a like construction was put upon the same words inanother but somewhat analogous section in Wood v. Perry 18 L.J.N.S. Ex. 161 : 6D L 1943 Exch. 442; and Bonsey v. Wordsworth 25 L.J.N.S.C.P. 205.

41. I wish to guard against expressing any opinion widerthan is necessary for the purposes of this case. It is enough to say that, inmy opinion where there are two breaches of one term in one contract, and bothoccur before any suit is brought, the cause of action within the meaning ofSection 43 is the non-performance of the promise, and only one suit will lie.In this case, I think the cause of action is that the defendant contracted totake and pay for ten bales of yarn and failed to do so. I should thereforeanswer the second question in the negative.

42. The point raised by the first question was abandoned onthe argument before us. That question should be answered in the negative.

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Anderson, Wright and Co.vs. Kalagarla Surji Narain(05.09.1885 - CALHC)