Authored By : William Comer Petheram, Henry Thoby Princep,Garth, Wilson, John Freeman Norris

William Comer Petheram, Kt., C.J.

1. My answer to the question referred to us by the Judge ofthe Small Cause Court is, that the plaintiffs are debarred from bringing thesetwo suits against the defendants by Section 43 of the Code of Civil Procedure.I frame my answer to the question in this form, because, as was said by Mr.Justice Wilson in the case of Anderson, Wright & Co. v. KalagarlaSurjinarain I.L.R. 12 Cal. 339 [LQ/CalHC/1885/178] , I prefer to guard myself, against (repressingany opinion wider than is necessary for the purposes of this case, and as wasdone by that learned Judge in that case, I found my judgment solely on theconstruction which I place on Section 43 of the Code. I agree with him inthinking that the words "the whole of the claim which the plaintiff isentitled to make in respect of the cause of action" in that section insuch a case as the present means the entire claim which the plaintiff hasagainst the defendant at the time the action is brought, in respect of anyfailure or failures to accept or pay for goods purchased of him by thedefendant under one contract, and that the whole of such claim must be includedin one action.

2. I am not aware of any other decision on this section,except the one cited in the judgment, and to which I have referred, and, as Ihave said before, I base my judgment on the construction of that section alone.

Henry Thoby Princep, J.

3. This is a reference from a Judge of the Small CauseCourt, Calcutta, in which the opinion of this Court is asked whether the twosuits fried by that Court are or are not barred by reason of Section 43 of theCode of Civil Procedure. The objection taken is not merely technical, because,if under Section 43 the claims now made should have been made the subject ofone suit, the amount involved would exceed the jurisdiction of the Small CauseCourt.

4. The point referred to us is thus stated by the learnedJudge of the Court of Small Causes:

Whether or not the plaintiffs are debarred from bringing twosuits against the defendants based on one and the same contract, both causes ofaction having accrued at the time of the institution of the suits.

5. The case stated is admittedly on all fours with Anderson,Wright & Co. v. Kalagarla Surjinarain I.L.R. 12 Cal. 339 [LQ/CalHC/1885/178] in which thelearned Judges (Garth, C.J., and Wilson, J.) differed.

6. The two suits are based on breaches of the same contract.One suit is for the price of goods delivered, the other for damages fornon-acceptance of other goods. Section 43 of the Code of Civil Proceduredeclares that "every suit shall include the whole claim which theplaintiff is entitled to make in respect of the cause of action." Thematter submitted to us therefore is, are these one or two causes of actionarising out of this transaction; in other words, what is the proper meaning ofcause of action in Section 43.

Garth, C.J.

7. In the case already mentioned, laid down that the"real principle which runs through all cases is that if the several itemswhich make up the claim are of the same nature and form part of the same courseof dealing so as to pass under the same description and form part of onetransaction, they must be considered as one cause of action, and must be joinedin one suit, though they may have arisen out of several contracts. But claimswhich are diverse in character, which do not answer the same description, andwhich would require a different class of evidence be support them, may be madethe subject of different suits, though they may arise out of the samecontract." The learned Chief Justice observed that in that case, as in thecase now before us, there is a claim for debt and a claim for damages,"and he mainly relied on the fact that the evidence in each case would bedifferent, so as to entitle the plaintiff to bring separate suits.

Wilson, J.

8. Observed that "in one sense every breach of contractis a separate cause of action." But, he added, the illustration to Section43 "shows that the framers have not here used the expression in thissense." That illustration is: "A lets a house to B at a yearly rentof Rs. 1,200. The rent for the whole of the years 1881 and 1882 is due andunpaid. A sues B only for the rent duo for 1882. A shall not afterwards sue Bfor the rent due for 1881."

9. I do not propose to consider the cases cited by thelearned Judges which relate to the practice in the Courts of England, and whichdo not, therefore, necessarily help us in deciding the practice in the Courtsof India which has been laid down by a special Code, and has been discussed insome of our reported cases. The terms of Section 7 of the Code of 1859, and ofSection 43 of that of 1882, do not vary materially. The former declared thatevery suit shall include the whole of the claim arising out of the cause ofaction"; Section 43 of the Code of 1882 provides that "every suitshall include the whole of the claim which the plaintiff is entitled to makein respect; of the cause of action." The cases, therefore, decided underthe Code of 1859 are in point.

10. Their Lordships of the Privy Council expressed theiropinion on this subject in Moonshee Buzloor Ruheem v. Shumsoonnissa Begum 11Moo. I.A. 551 see page 605 of the report. In that case, after previouslitigation to recover various moveable properties misappropriated by thedefendant, the plaintiff brought a fresh suit to recover some "Companyspaper" which she might have included in the former suit as part of herclaim. Their Lordships stated that "the correct test in all cases of thiskind is, whether the new suit is, in fact, founded on a cause of actiondistinct from that which was the foundation of the former suit.... But thecause of action in the former suit of the respondent seems to them to be therefusal by the husband to restore, or his misappropriation of the wifesproperty which he says she entrusted to him. There is nothing to distinguishthe deposit of this particular Companys paper from the deposit of those whichshe deposited with it, and has recovered in the former suit. It was a mere itemof her demand, and is admitted on the face of the present plaint to have beenomitted from it for no other reason than the very insufficient one beforementioned."

11. In Thakur Shankar Baksh v. Dya Shankar I. L.R. 15 IndAp66; I.L.R. 15 Cal. 422 the plaintiff sued for redemption of a mortgage ofcertain villages, having previously sued for redemption on a sub-proprietary orlesser title in the same village. Their Lordships held that the second suit wasbarred, holding that it did not make any difference as regards the cause ofaction, that in the former suit the plaintiff asked for the sub-proprietaryright and in the latter for the superior proprietary right. "It isnot," their Lordships state, "part of the cause of action. It is themanner in which the redemption of the mortgage was to be given." As theirLordships laid down in Soorjomonee Dayee v. Suddanund Mohapatter I.L.R. Vol.212; 12 I.L.R. 304 "the term cause of action is to be construed withreference rather to the substance than to the form of action."

12. To apply the test laid down by their Lordships of thePrivy Council, each of the two cases before us is founded, in fact, on a causeof action distinct from that which is the foundation of the other. The twosuits were brought simultaneously, and they are no doubt different in the formof action, but still the claim on both is for damages on account of breaches ofthe same contract. The difference in the form of action is of no consequence,for it has been laid down by their Lordships of the Privy Council that thesubstance rather than the form of action should be taken into consideration.

13. In both the plaintiff seeks to recover moneys due fromthe defendant on breach of the same contract--in the one suit as the price ofgoods delivered, in the other as damages in consequence of non-acceptance ofother goods. In substance, however, the two suits are the same. In both theplaintiff seeks to obtain the benefit of his contract. Taking this with theillustration to Section 43 of the present Code, I think that the plaintiff wasdebarred from bringing two suits, and we should answer the learned Judge of theSmall Cause Court accordingly.

John Freeman Norris, J.

14. I concur in holding that the question upon which ouropinion is asked by the learned Judge of the Small Cause Court should beanswered in the affirmative.

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Duncan Brothers and Co.vs. Jeetmull Greedharee Lall(21.05.1892 - CALHC)