RAMGOPAL BHAGWANDAS Vs. ROSHAN LAL

JUDGEMENT

(1.) The only question in this appeal is whether the suit out of which it has arisen was barred by a previously instituted suit which had been dismissed. The trial Court held in favour of the defendant firm whereas the lower appellate Court has held in favour of the plaintiff and has passed a preliminary decree for rendition of accounts. In the previous suit which was filed in March 1908 the plaintiff had claimed rendition of accounts on the allegation that there was a relationship of principal and agent between the parties. He had pleaded that he was a dealer in foodgrains whereas the defendant-firm carried on its business as agent. The central Government was selling its reserve stock of rice by inviting lenders in the year 1955. As the plaintiff did not have enougn funds he appointed the defendant-firm as pucca arhtia on the following terms (vide Exhibit Dl).

(2.) The defendants naturally set up the plea of the bar of res judicata which was given effect to by the first Court but which was negatived by the lower appellate Court, as stated before. The defendants have come up in appeal to this Court.

(3.) Mr. Chet Ram Mittal for the appellants has urged that the present suit was barred by virtue of Explanation 4 appearing in section II of the Code of Civil Procedure. He has relied on a Full Bench decision in Mst Sardaian v. Shiv Lal which was approved by their Lordships in Sunderabai v. Devaji Shanker Deshpande. The observations on which the trial Court based its judgment and by which Mr. Mittal has largely supported liis argument are that when the same right is claimed in both the first and the second suit but the right is based on one ground in the first suit and on a different ground in the second suit, the second suit is barred by the doctrine of resjudicata as the plaintiff in both the cases is litiga ing under the same title and further that if the same right is claimed in both the suits and the two claims are not destructive of each other it is incumbent on the plaintiff in the first suit to base his attack on all the grounds available to him at that time. The test in cases of this type is whether the claims are so dissimilar that their being joined in one suit would lead to confusion. In that case one Qaim Din died leaving him surviving three sons, Qutab Din, Fazal Din and Ranjha and two daughters, Mst. Sardaran and Mst. Allah Wasai. Qaim Din before his death executed awill bequeathing his entire property to his youngest son Qutam Din. It was stated in this will that the expenses of the betrothals and the marriages of the two drughtersof the testator would be met from his estate. One Shiv Lal secured a decree against Ranjha for a sum of Rs.700.00 . In execution of that decree a house belonging to the deceased Qaim Din was attached. M t. Sardaran instituted a suit against the decree-holder and others to the effect that the house in dispute was under a charge of Rs. 500.00 for her betrothal and marriage expenses and it could be sold only subject to that charge. This suit was dismissed on the ground that the will was not executed by Qaim Din while in sound disposing mind. Subsequently Mst. Sardaran and Mst Allah Wasai, the two daughters of Qaim Din, instituted a suit for a declaration that one- third share of the house belonged to them as the heirs of ("aim Din and was not liable to attachment in execution of the decree of Shiv Lal against Ranjha. The question of res judicuta arose and it was referred to a larger Bench. In this judgment there are other observations on which the learned counsel for the respondent has also relied. It has been pointed out by him that the decision of the Full Bench went in favour of Mst. Sardaran as it was held that her suit was not barred by the doctrine of res judicata. The reasoning of Abdul Rashid J. who delivered the judgment of the Full Bench was that Mst. Sardaran could in the former suit allege her title as an heir in the alternative but she was not bound to do so. In fact, had she done so, it would have created a great deal of confusion as her pleas on the two grounds of claim would have been destructive of each other. to support the maintenance claim, Mst. Sardaran had to prove the due execution of the will by her father Qaim Din and its validity, while to prove the alternative claim as an heir she had to allege and prove that the will in favour of Qutab Din was not duty executed and, even if it was duly executed, it was void being repugnant to the provisions of Mahomedan law. Such inconsistent claims could not have been tried in one suit. If both of these claims were incorporated in the same plaint, the Court would have been entitled to 18. strike out inconsistent pleadings on the ground that they would embarrass the trial of the suit. The test indicated by Abdul Rashid J. in a case of this type was whether the two claims were so dissimilar that their being joined in one suit would lead to confusion. Explanation 4 to section , of the Code of Civil Procedure would be no bar in such circumstances. In Mt. Sardaran v. Shiv Lal their Lordships approved of the observations in this decision and with great respect I would follow them.