Rajadhyaksha, J.:—
This is a second appeal from a decree passed by the Assistant Judge at Belgaum modifying the decree of the trial Court and thereby decreeing the plaintiff's suit in toto.
The plaintiff filed the suit out of which this second appeal arises for the recovery of a sum of Rs. 4,998 including the interest due on two mortgages. The first mortgage, which is exhibit No. 85, in the case, was dated July 2, 1928, and was for a sum of Rs. 3,500. The second mortgage, which is exhibit No. 84 in this case, was executed on February 15, 1929, and was in respect of a sum of Rs. 300. The two documents were executed by defendant No. 1 in favour of the father of the present plaintiff. Defendants Nos. 3 to 6 were the sons of defendant No. 1, defendant No. 2, who is the appellant before us, was a purchaser at an auction sale in execution of his own decree against the mortgager's right, title and interest in the property, and as such he was impleaded as a party to the suit. It appears that prior to the institution of this suit, the plaintiff had filed suit No. 43 of 1934 claiming possession of the property by virtue of a clause in exhibit No. 85, which empowered the mortgagee to obtain possession. That suit was dismissed by the trial Court on the ground that full consideration had not been paid by the plaintiff to the defendant. Thereafter the present suit was filed, and the principal contention taken by the defendants was that this suit was barred under O. II, r. 2. Several other contentions were also raised but they are not material for the purposes of this appeal. The trial Court held that the claim in respect of the dues under exhibit No. 85 was barred under O. II, r. 2 of the Civil Procedure Code, though not barred by the other contentions taken by the defendants, namely, bar under s. 67-A of the Transfer of Property Act and res judicata. The learned trial Judge held that in respect of the dues under exhibit No. 84, the plaintiff's claim could not be said to be barred. In respect of that mortgage he found that Rs. 600 were due to the plaintiff, and accordingly he passed a decree in favour of the plaintiff for that amount with proportionate costs.
Against that decree the plaintiff filed a first appeal, being Appeal No. 3 of 1944, in the District Court at Belgaum. The learned Assistant Judge who heard the appeal was of opinion that in respect of the claim of the plaintiff under exhibit No. 85 his suit could not be said to be barred under O. II, r. 2. Accordingly he modified the decree of the trial Court and allowed the plaintiff his claim in respect of the first mortgage also. The result was that the plaintiff's claim was decreed in full. It is against that decree that defendant No. 2 has come to this Court in second appeal.
It has been contended by Mr. Murdeshwar on behalf of the appellant that the learned Judge of the Court below was in error in holding that the bar under O. II, r. 2, did not apply. In order to appreciate this argument one has got to have regard to the actual terms of the mortgage deed. After reciting that Rs. 3,500 had been received by the mortgagor, the document goes on to say as follows:
“The date promised for payment is 3, three years from this day. I shall pay the entire principal and interest of years and take back this deed with endorsement regarding payment thereon. If I fail to make payment at the promised time I will pay the entire amount together with the interest for the period (days) which has then elapsed whenever you demand payment and take back this deed with the endorsement regarding payment. I will not fail to do this. For the said sum and for the amount of interest thereon I have mortgaged under a simple mortgage the below mentioned ‘Rayatava’ lands belonging to me and under my vahiwat, situate in the forest of mouje village Chikodi.” (then follows the description of the property mortgaged).
“I have conveyed under a simple mortgage deed the abovementioned three strips of land, which are whole sub-division numbers, known as “Randa Rottiya Maradi”, for the said sum and for the interest thereon and have retained with me the possession of the property. But if I fail to pay in time your entire amount you should get the property conveyed under the simple mortgage sold through the court and get your whole amount paid. If there be any deficit I shall make good the same personally and from my other estate. I shall not in any way fail to do so. Or you should get possession of the aforesaid property given under simple mortgage and go on enjoying it in lieu of interest on the aforesaid principal amount.”
According to the view taken by the learned trial Judge in respect of this document, the institution of the earlier suit for possession barred the institution of the present suit, because under the same cause of action two reliefs which could have been claimed in the earlier suit had not in fact been claimed, and the relief for the sale of the property could therefore be said to have been relinquished under O. II, r. 2. The learned appellate Judge was of the opinion that there were two independent causes of action. The learned Judge thought that the bond provided for two covenants, one was for payment of the mortgage dues by sale of the property and personally, and the other covenant was for delivering possession of the mortgaged property to the mortgagee for enjoyment or possession of the same in lieu of interest only. In his opinion the two covenants were entirely independent of each other. He thought that the earlier suit was based on the second covenant for specific performance of the agreement for possession of the land, while the present suit was under the first covenant which entitled the mortgagee, on the failure of the mortgagor to make payment of the mortgage dues, to ask for the sale of the property. As in his opinion the causes of action in respect of the two reliefs were different, the bar under O. II, r. 2, could not apply because O. II, r. 2 in terms refers to a person being entitled to more than one reliefs in respect of the same cause of action.
It has been contended by Mr. Murdeshwar on behalf of the appellant that the cause of action in this case was the same as in the earlier suit, namely, the failure of the mortgagor to pay the principal due and the interest thereon at the end of three years. We think that Mr. Murdeshwar is right in his submission, because the cause of action in respect of both the reliefs was the same, namely, the failure of the mortgagor to pay the principal amount due and the interest thereon at the end of three years. The cause of action gave rise to two reliefs which were in the alternative. The question, therefore, arises whether the bar under O. II, r. 2, can apply when the reliefs sought are not cumulative but are in the alternative.
It is quite clear from the terms of the mortgage that on the failure of the mortgagor to pay the amounts due under the mortgage at the end of three years the mortgagee had two alternative remedies. He was entitled to get the property conveyed under the mortage deed sold through court and thus to recover the amount due to him. In the alternative he was entitled to get possession of the property given under the simple mortgage and to go on enjoying it in lieu of the interest on the principal amount. If he resorted to the second remedy, presumably the mortgagee was to continue in possession of the property for a term of sixty years or until the mortgagor chose to redeem the property. It is thus clear that the two remedies which were given to the mortgagee were alternative remedies, and Mr. Murdeshwar does not dispute this interpretation put upon the mortgage deed. But his contention is that when the mortgagee filed suit No. 43 of 1934, claiming possession of the property by virtue of the second covenant he should have asked, in the same suit, for the alternative relief to which he was entitled under the mortgage deed; and he argues that his failure to do so debars the mortgagee from instituting a fresh suit for the first relief.
Now looking at the plain wording of O. II, r. 2, sub-rule (3), it seems to us that the proper construction to be placed on that sub-rule is that a person entitled to more than one relief in respect of the same cause of action must sue for all or any of such reliefs; but if under an instrument under which he claims he can only sue for one of two or more alternative reliefs, than bar under O. II, r. 2, does not apply. It is not the mere existence of more than one relief only that brings the bar under O. II, r. 2 into operation. If he is entitled to more than one cumulative reliefs, but sues for only some of those reliefs and does not choose to sue for the remaining reliefs, then his right to sue for the latter reliefs is barred under O. II, r. 2. If on the other hand he is entitled to only one relief out of several alternative reliefs and he sues for one of them his remedy to sue for other alternative reliefs is not barred for he cannot be said to have been entitled to more than one relief. This construction of the rule is in conformity with a Full Bench decision of the Lahore High Court in Parmeshri Das v. Fakiria. That was also a case where a suit had been filed on a mortgage. The mortgage was without possession, but the mortgagor promised to pay Rs. 40 per annum on account of interest. The stipulation in the mortgage deed was to the effect that in the event of the failure of the mortgagor to pay interest the mortgagee would have the option of either suing for interest then due or taking possession of the property mortgaged to him and keeping it in lieu of the principal and interest due. In 1906 the mortgagor committed a breach of the stipulation as to the payment of interest with the result that the mortgagee chose the alternative of suing for interest and obtained a decree for the amount then due to him. The mortgagor again made a default and the mortgagee then sued for the possession of the mortgaged property. A question arose as to whether the rule of procedure embodied in O. II, r. 2, operated as bar to the second suit for possession. Sir Shadi Lal, C.J, who delivered the judgment of the Full Bench, observed as follows (p. 462):
“As we read the document we think that there can be little doubt that the mortgagee could, when he brought the earlier suit, have sued either for interest or for possession, but was not entitled to include in the same suit both the claims. And if under the terms of the instrument, which regulates the jural relations of the parties he could not have claimed both the reliefs at one and the same time, then it would be futile to contend that he omitted to sue in respect of, or internationally relinquished, any portion of the claim which he was then entitled to make.”……It is clear that the two claims were naturally (mutually?) exclusive, and if we uphold the contention of the defendant, we would have to hold that the plaintiff was bound to include in his previous suit a claim for possession. This view would contravene the terms of the contract entered into by the parties. It would mean one of the two things: (a) that the mortgage was entitled to sue for possession as well as interest, a right not conferred upon him by the instrument or (b) that he was bound to sue, at any rate, for possession in the event of a default by the mortgagor, which would deprive him on the option conferred by the covenant. In either case we should be reading into the instrument a provision which not only does not exist there but would run counter to an express stipulation entered into by the parties. It is beyond doubt that no sound interpretation of the law of procedure should lead to such an absurd result.
The object of the rule embodied in O. II, r. 2, is to avoid the splitting of claims and to prevent further litigation. The rule is based upon the salutary doctrine contained in the maximum memo debet his vexeari pro una et eadem causa. We fail to see how a person can complain of being twice vexed in respect of the same cause, when he has himself given his adversary the option of making one claim or the other but has not conferred upon him the right to make both the claims at the same time.
With respect we are in agreement with the observations of the learned Chief Justice, and we think that the operation of O. II, r. 2, is to be confined to cases where the plaintiff is entitled to more than one relief in respect of the same cause of action and not to cases where he is entitled to sue for one relief out of many reliefs to which he may be entitled. In other words we think that O. II, r. 2, creates a bar where only cumulative reliefs can be and are not asked for and not where one of the two alternative reliefs can be and is asked for in the first suit.
A case practically on all fours with the one that we have to decide is to be found in Har Kaur v. Udham Singh. In that case a mortgage provided that the mortgage was to be for the duration of certain period, and that at the end of this period, the mortgagee could either claim possession or recover the mortgage money with interest at the rate agreed upon. It was held that the mortgagee's failure in a suit for possession to claim the relief for the recovery of the money due on the mortgage did not preclude him from asking for the relief in a subsequent suit. Because the right of the mortgagee to enter into possession and at his option convert a simple mortgage into a usufructuary mortgage was entirely apart from the right to demand payment by realization of the security and therefore an independent covenant. The learned Judges in that case pointed out that the two covenants were entirely distinct. But although the covenants were different, the reliefs under the two covenants arose out of the same cause of action. It was held that because the two reliefs were in the alternative, the failure in the first suit to ask for the relief in the alternative did not prevent the second suit being filed for the relief which was not claimed in the earlier suit.
Our attention has been invited to a decision of the Lahore High Court in Hari Chand v. Mola Ram, in which it was held that the mere fact that the reliefs claimable were in the alternative did not prevent the application of O. II, r. 2. That was, however, a decision of a single Judge and was clearly contrary to the decision of the Full Bench in Parmeshri Das v. Fakiria. The learned Judge has attempted to distinguish the Full Bench case from the case with which he was dealing, but with respect we are unable to follow the distinction drawn by the learned Judge. We prefer to follow the decision of the Full Bench in Parmeshri Das v. Fakiria.
We therefore think that O. II, r. 2, was no bar in this case to the filing of the present suit, and that the view taken by the learned Assistant Judge is correct.
The appeal will, therefore, be dismissed with costs.
Decree confirmed.
J.G.R