1. This is a plaintiff's appeal arising out of a suit for possession over a shop situate in Qila, district Aligarh. The petitioner was the owner of the disputed shop. On being requested by the defendant for giving the shop temporarily, the plaintiff inducted the defendant into possession of the shop as a licensee. The defendant was asked to vacate the shop after three months in 'August 1963, but the defendant did not do so. Consequently, the plaintiff gave him a notice dated 5-11-1963 revoking the licence. The defendant did not pay any heed to the notice and continued in possession of the shop. Consequently, the plaintiff filed Suit No. 238 of 1967 in the court of Judge Small Causes, Aligarh for recovery of mesne profits from the defendant. The suit was contested by the defendant on the ground that he was not a licensee, but was a tenant. On 11-8-1967 the suit was decreed for compensation with effect from 1-8-1963 up to 31-3-1967. The defendant filed a revision against the said judgment. The revision was rejected. Thereafter, the plaintiff brought the suit giving rise to the present appeal for recovery of possession on the allegation that since the defendant was his licencee he was liable to be dispossessed. The plaintiff also claimed mesne profits for the period which was not the subject-matter of decision of the earlier suit.

2. The defendant denied that he was a licensee of the shop and pleaded that he was a tenant. He further asserted that the present suit was barred by Order II, Rule 2 of Code of Civil Procedure. The trial court decreed the suit for recovery and possession as well as for mesne profits. Being aggrieved, the defendant went up in appeal. In the appeal, the only point pressed before the appellate court was about the bar of Order II, Rule 2, Civil P. C. On this point the findings of the learned Munsif went in favour of the plaintiff and against the defendant. The lower appellate court was, however, of the view that since the suit for possession arose from the same cause of action on which the suit for recovery of damages and mesne profits had been filed, the present suit was barred by Order II, Rule 2, Civil P. C. Taking a contrary view about the application of Order II, Rule 2, Civil P. C. the lower appellate court dismissed the suit. Being aggrieved, the plaintiff filed the present appeal.

3. The only question that is required to be decided in this appeal is about the bar of Order II, Rule 2, Civil P. C. Order II, Rule 2, Civil P. C. is based on the principle that the defendant could not be vexed twice for the same cause. This rule is directed to suppress the twin evils, i. e., splitting up of claims and splitting of remedies. The rule, therefore, does not prohibit if a second suit is based on a distinct and separate cause of action.

4. The expression "cause of action means the "cause of action" for which the suit was brought. In order that the "cause of action" in two suits could be the same, it was necessary that the facts which entitled the plaintiff to the right claimed must not only be the same, but also that the infringement of his rights at the hands of the defendant must have arisen, in substance, out of the same transaction. The resulting test would be whether, in fact, the subsequent suit was founded on a "cause of action" distinct from that which was the foundation of the former suit.

5. There is a conflict of opinion amongst the various High Courts on the question whether a suit for possession by a landlord, after termination of tenancy of a tenant, was barred if he had already filed a suit for mesne profits. In Sardar Balbir Singh v. Atma Ram Srivastava (AIR 1'977 All 211), the Full Bench of this Court was called upon to consider the aforesaid question. In that case the plaintiff-landlord determined the tenancy, of the defendant. On his failure to vacate, the landlord instituted the suit against the tenant for arrears of rent and mesne profits and expressly reserved his right to file a suit for ejectment subsequently. For this purpose he had obtained leave of the court also. During the pendency of this suit the plaintiff brought another suit for ejectment of the defendant and for recovery of mesne profits which arose subsequent to the filing of the first suit. The question before the Full Bench was whether the second suit was maintainable having regard to Order II, Rule 2, C.P.C. The Full Bench answered the question in the affirmative and held that the second suit was barred. But, as in the said case leave of the court had been obtained by the plaintiff-landlord in the first suit which had been brought against the tenant-defendant, the Court held that Order II, Rule 2 Civil P. C. did not apply to the same.

6. Sri R. P. Goel, learned counsel for the defendant, then strenuously relied on another decision of this court reported in Saghir Hassan v. Tayab Hasan (AIR 1940 All 524). Learned counsel appearing for the plaintiff, however, urged that since in Balbir's case (supra) the plaintiff had sought leave in the first suit, the provision bf Order II, Rule 2, Civil P. C. did not apply. The counsel urged that since the Full Bench held that on account of having obtained the leave, Order II, Rule 2, Civil P. C. did not apply, the observations made by the Full Bench on the bar of Order II, Rule 2, Civil P. C. were obiter. Their Lordships constituting the Full Bench, according to the learned counsel for the plaintiff, were not called upon to decide the controversy relating to the application of Order II, Rule 2, Civil P. C. to a case of filing a suit for mesne profits and thereafter another suit for possession.

7. At this place, I consider it appropriate to point out the amendment made in Order II, Rule 2, Civil P. C. by P. V. Act No. 57 of 1976. By this amendment of the U. P. State added the following Explanation:--

"For the purposes of this rule a claim for ejectment of the defendant from immovable property let out to him and a claim for money due from him on account of rent or compensation for use and occupation of that property shall be deemed to be claims in respect of distinct causes of action."

However, the controversy involved before me is different. In the case at hand, the plaintiff claimed himself to be a licensor and the defendant a licensee. There is a difference between a lease and a licence. Those distinctions are well-settled and need not be dealt with in this judgment. The chief distinction is that a licence does not create any interest in the property to which it relates whereas an interest is created in the property leased. However, on account of the peculiar facts of the present case, I am absolved of the duty to go into this vexed question. In the present case, the peculiar feature which is required to be noted is that the earlier suit for recovery of compensation had been filed by the plaintiff against the defendant in Small Causes Court. The plaintiff could not seek the relief of possession in that suit as a Small Causes Court has no jurisdiction to entertain such a suit. The question that was required to be considered was whether the bar of Order II, Rule 2. Civil P. C. even applied to a case like the present. The position appears to be that Order II, R- 2, Civil P. C. would not apply unless the court, who tried the former suit, had jurisdiction to try the claim omitted by the plaintiff.

8. In Jagat Singh v. Sangat Singh (AIR 1940 PC 70) this controversy came up for consideration. The Privy Council held that since the earlier court where the suit had been filed had no jurisdiction to entertain the later suit, Order II, Rule 2, Civil P. C. could not apply. In that case the first suit had been filed in Peshawar whereas the second suit was instituted in the court of Subordinate Judge Lyallpur. The question arose in the second suit about the bar of Order II, Rule 2, Civil P. C. The bar was upheld by the High Court, but the Privy Council did not approve of it and reversed its decree on the basis that since the suit in respect of the properties situated at Lyallpur could not lie in Peshawar, Order II, Rule 2 Civil P. C. did not apply.

9. In the State of Madhya Pradesh v. State of Maharashtra (AIR 1977 SC 1466) the Supreme Court was also called upon to consider the scope of Order II, Rule 2, C.P.C.

9-A. The relevant observations are to be found in paragraph 25:--

"The contention of Madhya Pradesh cannot be accepted. The plaintiff will be barred under Order 2, Rule 2. Civil P. C. only when he omits to sue for or relinquishes the claim in a suit with knowledge that he has a right to sue for that relief. It will not be correct to say that while the decision of the Judicial Committee in Lall's case (supra) was holding the field the plaintiff could be said to know that he was yet entitled to make a claim for arrears of salary. On the contrary, it will be correct to say that he knew that he was not entitled to make such a claim. If at the date of the former suit the plaintiff is not aware of the right on which he insists in the latter suit the plaintiff cannot be said to be disentitled to the relief in the latter suit. The reason is that at the date of the former suit the plaintiff is not aware of the right on which he insists in the subsequent suit. A right which a litigant does not know that he possesses or a right which is not in existence at the time of the first suit can hardly be regarded as a "portion of his claim", within the meaning of Order 2, Rule 2, Civil P. C. See Amant Bibee v. Imdad Husain, (1885) 15 Ind App 106 at p. 112 (PC). The crux of the matter is presence or lack of awareness of the right at the time of first suit."

To me it appears that the ratio of the said case applies to the present case as well. The earlier suit was a suit filed before the Judge Small Causes Court simply for recovery of compensation. The Small Causes Court had no jurisdiction to pass any decree for possession. Consequently, omission to sue for possession could not operate as a bar. The bar could be applied only when the earlier court had jurisdiction to give a relief to the plaintiff in respect of the same. An analogy may be taken to illustrate the point further. Supposing the prior suit is filed in a revenue court and latter suit is in a civil court in respect of a claim not triable by a revenue court, the latter suit would not be barred under Order II, Rule 2, Civil P. C.

10. For the reasons given above, I find that the judgment of the lower appellate court is erroneous and is liable to be set aside.

11. In the result, the appeal succeeds and is allowed. The judgment and decree of the lower appellate court are set aside and that of the trial court restored with costs.