The cause of action for a suit for recovery of immovable property is not the same as the cause of action for damages for breach of any contract under which the property or any part thereof is held.

JUDGMENT - Kotwal, C.J.

(This reference to a Full Bench has been occasioned by a conflict of decisions of this Court in Channappa Girimalappa v. Bagalkot Bank, AIR 1942 Bom 338 and Rama Kallappa Pujari v. Saidappa Sidrama Pujari, AIR 1935 Bom 306). In both the cases the judgment is that of Sir John Beaumont, Chief Justice. The original question referred simply posed for out determination the conflict between these two decisions. In short which of them was right but after some preliminary discussion and with the consent of counsel for both the parties, we have reframed the question in order to bring out the real controversy between the parties in the litigation from which these two appeals have been filed. The question that we have now to determine is :-

Is the plaintiffs suit maintainable having regard to the provisions of O. 2, R. 2 and O. 2, R. 4 of the Code of Civil Procedure ?

2. The question arises upon the following facts : Gangabisan Sikchi was the owner of Kamal Theatre in Amravati town. He leased it out on 20-1-1945 to Shankarlal Rathi. The lease was for a period of ten year commencing from 20-1-1945 and is evinced by a registered rent note dated 6-1-1946 (Ex. P - 3). In 1949 there was a litigation between Gangabisen and Shankarlal. It was a suit (Civil Suit No. 40 - A of 1949) filed by Gangabisan for the ejectment of Shankarlal in the Court of the Second Additional District Judge, Amravati (Mr. B. V. Patwardhan). The suit ended in a compromise and by the compromise decree the agreement of lease dated 20-1-1945 was modified in two respects :-

(1) Instead of the amount of Rs. 525/- per month the rent originally fixed, the lessee agreed to pay Rs. 741/- per month. (2) By the agreement a second lessee was introduced namely, Saroj Screens (Pvt.) Ltd. This company was recognised along with Shankarlal as a co - lessee. In all other respects the agreement dated 6-1-1946 continued to operate.

3. In 1955 Gangabisan filed a suit for declaration of his title only (Civil Suit No. 26 - A of 1955) but later on decided to withdraw it and an order of withdrawal was passed on 28-8-1956 by Mr. B. B. Shrivastava, First Civil Judge, Class II, Amravati. No permission to bring another suit was asked for or granted.

4. The lease which was for ten years from 20-1-1945 expired on 19-1-1955. On that date the defendant, Shankarlal Rathi and Saroj Screens (Pvt.) Ltd., were in areas of rent, and according to the plaintiff, the lease had terminated by virtue of the operation of clause 7 of the rent note dated 6-1-1946. Clause 7 provided that the lessees will vacate the theatre as soon as the lease period was over, and in case the lessees continued in occupation of the theatre after the lease period was over, they would be bound to pay Rs. 20/- per day as penalty to the plaintiff Gangabisan in addition to the amount of rent, namely Rs. 741/-. Therefore, Civil Suit No. 36 - B of 1955 was filed on 19-12-1955. Therein the plaintiff Gangabisan claimed damages from the defendant for the period from 20-1-1955 to 19-11-1955 at the rate of Rs. 1341/- per month. The amount of Rs. 1341/- was comprised of two items, namely, Rs. 741/- the revised rent per month fixed and Rs. 600/- per month at the rate of Rs. 20/- per day, being the penalty. This suit substantially came to be dismissed (except for a small amount of Rs. 1210/5/0) in the Court of Mr. N. M. Koyal, Civil Judge No. 2, Amravati, who was also at that time an Additional District Judge, Amravati. The trial Courts judgment was however reversed by the District Judge, Amravati, Mr. M. S. Apte (now Mr. Justice Apte) in Civil Appeal No 17 - B of 1958 by the judgment dated 29-7-1959. A second appeal was filed and in that second appeal there was filed a remand order by the High Court and after the issue remanded was determined, that litigation came to be finally decided by this Court on 10-8-1965. (Second Appeal No. 396 of 1959). Thus it was finally determined that the defendants had ceased to be the tenants of K

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