Monday, 14 December 2020

Whether the right of the landlord to get rent accrued during the pendency of the first suit will be barred by res judicata if the landlord fails to claim said rent by amending plaint?

 (g) Rent and Recurring Cause of Action:


48. The Corporation and the Firm maintain that the Owner's claim has been barred by res judicata. I reckon what applies, if ever, here is Order 2, Rule 2 of CPC. And the provision reads:


2. Suit to include the whole claim.--(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 and portion of his claim in order to bring the suit within the jurisdiction of any Court.


(2) Relinquishment of part of claim.--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) Omission to sue for one of several reliefs.--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 relief so omitted.


49. The illustration exemplifies what amounts to relinquishment of part of claim. A lets a house to B at a yearly rent of Rs. 1,200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. He shall not afterwards sue B for the rent due for 1905 or 1907.


50. That is, the suit was in 1908. A's cause of action got crystalised on the date of his filing the suit. His right was to recover the rent arrears accumulated by then--for 1905, 1906, and 1907. The cause for his action was the B's default. The default was up to the date of his going to the Court, until the end of 1907. In the illustration, by the time A filed the suit, the rent for 1906 and 1907 was also due. Yet A did not seek to recover what he had been entitled to by then. The rent for 1906 and 1907, I may stress, was not the rent accumulated pending the suit.


51. In other words, A's suit in 1908 must have included the whole claim which A was entitled to make by then. But A sued for the rent of only 1906. In that suit, as A did not seek the rent for 1905 and 1907, it amounted to his relinquishing that portion of the claim. Law treats that as an intentional relinquishment. So, he shall not afterwards sue for that relinquished or omitted portion. The reckoning point, I must say, is the date of suit filing.


52. Looked from another angle, in the illustration, we may note that the suit was filed in 1908, but the rent for that year was not included because it was not due by then. That means a future arrear cannot provide cause of action. What should happen to the rent of 1908?


53. We cannot presume that a suit gets decided there and then. It runs its course; in the meanwhile, many years may pass. Let us assume that the case in the illustration took six years to conclude, after running its course through appellate and revisional channels. So it ended in 1914. If we accept the Corporation's argument, then every year or at least intermittently the owner should have amended his pleadings and kept adding the rent for the years passing by until the suit ended. This method adopted, the court fee gets paid whenever there is an amendment and, eventually, the arrears adding up, even the pecuniary jurisdiction may change. So halfway through the trial Court should abandon the case and transmit it to another court. A chimerical concept of procedural law. On the contrary, once the cause of action crystallizes and issues are struck, the parties go to the trial on that basis. Thus, for adjudicatory purposes, the cause of action stands frozen.


54. True, subsequent events may affect the suit outcome. For that, either party to the suit should bring to the court's notice those later developments. For that even the amended Order 6, Rule 17 of CPC provides. Otherwise, the court itself, in the interest of justice and to avoid multiplicity of proceedings, may take note of those developments. But law does not compel a person to invariably bring on record all the later developments through amendment. If the later developments provide an independent cause of action, the party's right to a fresh legal remedy remains intact. This proposition applies with more rigour if the cause of action is recurring.


55. Indeed, default in rent remittance provides recurring cause of action. Every successive default provides an independent cause of action. Later developments may affect that cause of action if they are duly brought on record; otherwise, they provide further independent cause of action. Even the doctrine of lis pendens does not defeat the suitor's independent right to sue. It is only a matter of prudence and convenience that all the related facts are brought under one umbrella of adjudication. More particularly, if the cause of action is recurring, each instance of recurrence provides an independent cause of action. Here, the first suit--RCS No. 754 of 1977--concerns the rent from 1.4.1973 to 30.4.1977. The second suit--RCS No. 149 of 1998--concerns the later period.


56. I, therefore, conclude that the Owners have not lost their right to sue the Corporation and the Firm merely because the default occurred when another suit was pending. Pithily put, if there is no completed cause of action, there is no right for the party to sue. If the completed cause of action has many aspects or facets, but the party sues only on a few, the rest remain relinquished or abandoned. But on a completed cause of action if a party sues and pending those proceedings, there is, temporally speaking, recurrence of the same cause of action, it provides an independent cause of action. All these rights to sue are subject to one obvious limitation: The Statute of Limitation.

 IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 561 of 2018 and 562 of 2016 in Regular Civil Appeal No. 237 of 2005 in Regular Civil Suit No. 149 of 1998

Decided On: 27.04.2020

 K.B. Lahoti and Company and Ors. Vs. Champalal Vithuram Jajoo and Ors.

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: 2020(5) MHLJ 196,MANU/MH/0535/2020.

Read full judgment here: Click here


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