P L D 1957 (W (PLP)

QADEERUDDIN, J.

This is a revision application in which the order of the Chief Judge, Small Causes Ccurt, dated the 15th December 1954, is questioned. The learned Chief judge dismissed the suit of the applicant on the ground that it was barred by Order II, rule 2, Civil P. C. The applicant seeks its revision on the ground that the cause of action in this suit was different from the cause of action of the previous suit. The parties had entered into a contract dated the 16th May 1951, by which the applicant had undertaken to carry out some construction work for the respondent. The contract mentions the rates for various types of work and, in the end, it is stated in it as follows :- "Water and other articles suchas 'phatas' and 'ghoras' shall be supplied." The applicant filed a suit after giving a notice in February 1952. In the notice he claimed a sum of Rs. 534-4-6 and the return of the articles, namely, six phattas and three ghoras, along with the rent thereof. No rent was mentioned separately for the use of these articles. He then brought a suit, being Suit No. 752 of 1952 for the amount claimed, which was decreed for' a sum of Rs. 311-12-6. He then brought the present suit for Rs. 1,900 and claimed a rent of Rs. 2-4-0 per day for the goods supplied by him and alleged to have been used for the respondent. The learned Chief Judge has held that the present suit is barred by Order II rule 2, as the whole claim of the plaintiff ought to have been included in the first suit. Mr. Ihsanul Haq, Advocate has argued that the present suit is not based on any provision of the contract. He has contended that according to the contract, it was the duty of the proprietor to supply phattas and ghoras, but he failed to supply them and, therefore, the plaintiff did the needful in order to be able to carry out the construction. His argument is that the cause of action of the present suit has arisen from the failure of the respondent to supply the material and, therefore, this cause of action is different from the cause of action of the previous suit, which was based on the contract alone. A reference to para. 3 of the plaint, however, shows that the plaintiff did not rely on the failure of the respondent to supply the material. There is no mention in the plaint of such failure. The argument of Mr. Ihsanul Haq is, therefore, an after thought. Even if the failure of the respondent to supply the material was made the basis of the present suit, such failure would have been ultimately based on the terms of the contract, and it is difficult to say that even in such an event the present suit of the plaintiff is, or would have been, inde pendent of the contract. The plaintiff has claimed Rs. 534-4-6 in the previous suit, which has been decreed for Rs. 311-12-6. He cannot now be allowed, under Order II, rule 2, Civil P. C. To go back to the original contract, or to the breach of the original contract, or to the consequences of such breach and to claim an additional amount of money from the respondent. Mr. Ihsanul Haq has, in the alternative, argued that the present claim is for hiring charges on daily basis, and there fore there is a continuing cause of action. The former suit was filed on 9th July 1952 and charges which accrued up to that date alone could be included in it. The goods supplied by the plaintiff, remained with the respondent upto 29th October 1953 and therefore the hiring charges which after the institution of the previous suit up to the 29th October 1953 could not be included in the previous suit, and as such should not be considered to have been barred by Order II, rule 2, Civil P. C. In my opinion this argument is based on a fallacious appreciation of the claim. If the plaintiff could claim hiring charged up to the date of the suit, i. e., 9th July 1952, and failed to do so, and if his claim for this period became barred by Order II, rule 2, then the basis of the additional claim has been lost to him. The cause of action of the present suit is stated in the plaint to be as follows :- "That the cause of action to the suit arose on 25th June 1951, when the plaintiff supplied the said phatas and ghoras and on 29th October 1953 when the defendant returned the same and lastly on 1st April 1954, when the defendant finally refused to pay the said amount;' The date of the refusal to pay, and the date on which the goods were returned are not the dates on which any real clause of action arose in favour of the plaintiff. The real cause of action arose for the plaintiff on the 25th of June 1951 which date is mentioned in the above para. If the cause of action which arose on this date has become barred by Order II, rule 2, Civil P. C., then the consequence if that cause of action which extends to the period next after the previous suit, i.e., the 10th July 1952, up to the 29th October 1953. cannot be separated from the real cause of action, and does not entitle the plaintiff to bring a suit on that basis. He had claimed in the previous suit an amount of Rs. 534-4-6 and that amount should be taken ''to cover the claim of his hiring charges at least upto the date of the suit. If it is held that the claim for hiring charges itself was relinquished and became barred by Order II, rule 2, then there can be no question of that claim reviving at subsequent dates. The plaintiff could be entitled for hiring charges from the 10th July 1952 to the 29th October 1953, if his claim itself for hiring charges was not relinquished. In order to be able to sustain his claim for the latter period it would be necessary for him to establish that he did not lose his right for making claim. If his right itself was abandoned, then the period of time to which it may be said to extend is immaterial, and the alter ation argument advanced by Mr. Ihsanul Haq does not appear to be sound. The following words of the explanation to Order I1, rule 2 appear to be directly against the applicant : "Successive claims arising under the same obligation shall be" deemed respectively to constitute but one cause of action." I therefore hold that there is no reason to interfere with the order of the Chief Judge, Small Causes Court, dated the 15th of December 1954, and dismiss the revision application with costs. A. H. Petition dismissed.