Order II, Rule 2, Civil Procedure Code, does not apply to a case where the earlier court did not have jurisdiction to try the claim omitted by the plaintiff.

( 1 ) THIS is a plaintiffs appeal arising out of a suit for possession over a shop situate in Qila, district Aligarh. The petitioner was the owner of the disputed shop. On being requested by the defendant for giving the shop temporarily, the plaintiff inducted the defendant into possession of the shop as a licensee. The defendant was asked to vacate the shop after three months in august 1963, but the defendant did not do so. Consequently, the plaintiff gave him a notice dated 5-11-1963 revoking the licence. The defendant did not pay any heed to the notice and continued in possession of the shop. Consequently, the plaintiff filed Suit No. 238 of 1967 in the court of judge Small Causes, Aligarh for recovery of mesne profits from the defendant. The suit was contested by the defendant on the ground that he was not a licensee, but was a tenant. On 11-8-1967 the suit was decreed for compensation with effect from 1-8-1963 up to 31-3-1967. The defendant filed a revision against the said judgment. The revision was rejected. Thereafter, the plaintiff brought the suit giving rise to the present appeal for recovery of possession on the allegation that since the defendant was his licencee he was liable to be dispossessed. The plaintiff also claimed mesne profits for the period which was not the subject-matter of decision of the earlier suit.

( 2 ) THE defendant denied that he was a licensee of the shop and pleaded that he was a tenant. He further asserted that the present suit was barred by Order II, Rule 2 of Code of Civil Procedure. The trial court decreed the suit for recovery and possession as well as for mesne profits. Being aggrieved, the defendant went up in appeal. In the appeal, the only point pressed before the appellate court was about the bar of Order II, Rule 2, Civil P. C. On this point the findings of the learned Munsif went in favour of the plaintiff and against the defendant. The lower appellate court was, however, of the view that since the suit for possession arose from the same cause of action on which the suit for recovery of damages and mesne profits had been filed, the present suit was barred by Order II, Rule 2, Civil P. C. Taking a contrary view about the application of order II, Rule 2, Civil P. C. the lower appellate court dismissed the suit. Being aggrieved, the plaintiff filed the present appeal.

( 3 ) THE only question that is required to be decided in this appeal is about the bar of Order II, rule 2, Civil P. C. Order II, Rule 2, Civil p. C. is based on the principle that the defendant could not be vexed twice for the same cause. This rule is directed to suppress the twin evils, i. e. , splitting up of claims and splitting of remedies. The rule, therefore, does not prohibit if a second suit is based on a distinct and separate cause of action.

( 4 ) THE expression "cause of action means the "cause of action" for which the suit was brought. In order that the "cause of action" in two suits could be the same, it was necessary that the facts which entitled the plaintiff to the right claimed must not only be the same, but also that the infringement of his rights at the hands of the defendant must have arisen, in substance, out of the same transaction. The resulting test would be whether, in fact, the subsequent suit was founded on a "cause of action" distinct from that which was the foundation of the former suit.

( 5 ) THERE is a conflict of opinion amongst the various High Courts on the question whether a suit for possession by a landlord, after termination of tenancy of a tenant, was barred if he had already filed a suit for mesne profits. In Sardar Balbir Singh v. Atma Ram Srivastava (AIR 1977 all 211), the Full Bench of this Court was called upon to consider the aforesaid question. In that case the plaintiff-landlord determined the tenancy, of the defendant. On his failure to vacate, the landlord instituted the suit against the tenant for arrears of rent and mesne profits and expressly reserve