A subsequent suit for arrears of rent is maintainable if it arises from a different cause of action than a prior suit for possession, even if the claim is mischaracterized as rent instead of damages.

JUDGMENT :

(K. Natarajan, J.)

This appeal is filed by the appellant/ defendant under Section 96 of CPC., for setting aside the judgment and decree passed by the VII Addl. City Civil & Sessions Judge, Bangalore (CCH-19), in O.S.No.7633/2013 dated 27.06.2015, for having decreed the suit of the plaintiff and directing the defendant to pay the rent of Rs.1,30,582/- with 12% interest per annum from the date of the suit till its realisation.

2. Heard the arguments of learned counsel for the respondent and appellant.

3. The rank of the parties before the Trial Court is retained for the sake of convenience.

4. The case of the plaintiff before the Trial Court is that the plaintiff was the owner, and the defendant was the tenant under the suit premises of plaintiff, situated at first floor, 7th main, 4th stage, Basaveshwaranagar, Bangalore. He was a tenant from 05.08.2010 to 29.06.2012. He was paying the monthly rent of Rs.8,600/- +400 towards water charges + 100 towards maintenance charges, totally Rs.9,100/- per month. Later he was default of payment of rent for two months and later a notice was issued and tenancy was terminated by the plaintiff. Accordingly, notice was issued on 26.03.2011 and suit came to be filed in April 2011 and the suit came to be decreed in OS.No.25824/2011 and the defendant also vacated the premises and handover the possession on 29.06.2012 and with arrears of rent of Rs.18,200/-. Subsequently, the plaintiff filed the present suit for recovery of the rent from the filing of the suit till vacating the premises by the defendant on 29.06.2012, totally Rs.1,45,600/- has been calculated, Rs.50,000/- advance amount has been adjusted and the plaintiff spent Rs.29,689/-towards the painting charges and electricity charges Rs.293.54/-also paid by the plaintiff. Therefore filed this fresh suit for claiming Rs.1,30,582/- by issuing the notice, later suit came to be filed.

5. The defendant appeared through the counsel and filed written statement contending that, the defendant has vacated the premises in April and hand over the key before the court which was received by him. The plaintiff refused to accept the same and the defendant is already vacated the premises and is not liable to pay any rent from April 2012. The defendant is not liable to pay Rs.29,689/- towards the painting charges, two months rent ordered by the trial court in the earlier suit has been deposited. The plaintiff suppressed the facts and payment of arrears of rent in OS.No.25824/2011 and denying all averments and prayed for dismissing the suit.

6. Based upon the pleadings, the Trial Court has framed the 4 issues which are as under;

1. Does the plaintiff proves that he is entitled to recover a total sum of Rs.1,30,582/- towards arrears of rent for the use and occupation of the premises, towards cost of the painting, electricity charges etc., as prayed under the suit?

2. Whether the suit of the plaintiff is barred by law of constructive res-judicata?

3. Whether the plaintiff is entitled for current and future interest? If so, at what rate?

4. What order or decree?

7. To prove the case of the plaintiff, the plaintiff himself examined as P.W.1 and got marked Ex.P.1 to P.11 documents. The defendant and one witness are examined as DW.1 and 2 and got marked Ex.D.1 to D.5 documents. The Trial Court after hearing the arguments decreed the suit of the plaintiff. Being aggrieved by the same the defendant is before this court.

8. The learned counsel for the appellant has contended mainly on the ground that the suit of the plaintiff is not maintainable that the plaintiff has already filed the suit and claimed the rent in the earlier suit which was decreed and the defendant paid the arrears of rent as per the decree and the said decree was attained finality. Therefore subsequent suit is not maintainable, which is hit by Order II Rule 2 of CPC., where all the claims he has to file in one suit and claim all the relief, if any relief not claimed or forgone once again he cannot cl