Subbu Thaiammal vs Rengasami Nackar and Others

Panchapakesa Ayyar, J.—The only point for consideration here is whether the lower Court was right in applying Order 2 Rule 2, Civil

Procedure Code, in the circumstances of the case, and disallowing the plaintiff''s claim for Rs. 127-14-4, the instalment of rent which had become

payable on 12th June, 1952 though she had not sued for it in S.C.S. No. 535 of 1952 filed on 8th September, 1952.

I have perused the entire records, and heard the learned Counsel on both sides. Mr. Champakesa Ayyangar, learned Counsel, for the petitioner

urged that the lower Court was wrong as there was a distinct cause of action regarding each instalment of rent, and there was a right, therefore, to

sue for each instalment separately, at the plaintiff''s choice, within the period of limitation. I cannot agree. This will lead to the absurdity that a

person can sue for an instalment falling due on 15th April, 1955, leaving out the instalment which had fallen due on 15th April, 1954, and suing for

the earlier instalment in a subsequent suit. Mr. Champakesa Ayyangar dropped this contention on finding this absurdity. But he urged a more

substantial contention, namely, that, under the agreement between the parties embodied in the usufructuary mortgage, the plaintiff was given the

option to claim each instalment of rent, not on the date it fell due but on some subsequent date she herself pitched upon, with interest from the due

date. He urged that the plaintiff had acted on this clause and had decided not to sue for the last instalment (which fell due on 12th June, 1952) in

S.C.S. No. 535 of 1952 as she had decided to give a little more time to the defendants to pay up this last instalment. But, as they did not pay up in

spite of the extended time given, she sued for that instalment in the present suit. Mr. V. Ramaswami, learned Counsel for the defendants, urged that

successive claims arising under the same obligation, like successive instalments of rent, will have to be included in a suit, if they have fallen due by

then, on peril of Order 2, Rule 2, Civil Procedure Code, being applied. But he had no reply to the question I put to him as to what would be the

position when a landlord gave some more time for paying the last instalment, acting under a clause like the one in the mortgage deed, and so this

last instalment had not fallen due by then. I therefore consider that in view of that clause, Order 2, Rule 2, Civil Procedure Code, would not strictly

apply, and defeat the plaintiff of the right to a decree for this instalment, though, in view of various circumstances, she should not be given any costs

on this added amount.

The decree of the lower Court is accordingly modified by granting the plaintiff a decree for Rs. 255-12-8, instead of for Rs. 127-14-4, but with

proportionate costs calculated only on Rs. 127-14-4, as the lower Court has done. The plaintiff will bear the remaining suit costs herself, and the

defendants will bear their own suit costs. In this Civil Revision Petition, all the parties will bear their own costs.