PARASRAM Vs. AMARCHAND

JUDGEMENT

(1.) A learned single Judge of this Court has referred the following question for answer: "whether in the facts and circumstances of the present case the appeal is barred by res judicata"?

(2.) LET us briefly state the facts. The plaintiffs as commission agents advanced Rs. 8,560/- to the defendants on 3-3-51 for obtaining a railway receipt of certain goods from the Punjab National Bank, Jodhpur. The plaintiffs also gave on 8-3-51 rs. 836/14/9 by way of payment to a broker. The defendants' goods covered by the railway receipt when sold by the plaintiffs on behalf of the defendants fetched rs. 6501/15/6 and after deduction of expenses a balance of Rs. 3077/10/3 remained due to the plaintiffs and claiming interest and cost of notice the plaintiffs instituted a suit against the defendants which eventually was transferred to the civil Judge, Jodhpur, (being Suit No. 135/1955) for recovery of Rs. 3146/7/ -. We shall call it Suit No. 135 hereinafter. The defendants instituted a counter suit for rendition of accounts against the plaintiffs which also travelled to the same court by transfer as Suit No. 186. These two suits were consolidated by the consent of the parties and common issues were raised. By a single judgment dated 30-7-58 the trial court decreed suit No. 135 for Rs. 3120/5/- and 'dismissed suit No. 136. The defendants presented two appeals in the Court of the District Judge, Jodhpur. The appeal arising out of suit No. 135 was numbered as Civil Appeal No. 237 of 1958 and against the decree in suit No. 136 as 219 of 1958. The learned District judge heard these appeals together and by a common judgment dated 12-9-63 dismissed both the appeals. On behalf of the defendants an appeal was preferred in this Court against the decree of the District Judge No. 237 of 1958 arising out of suit No. 135 and preferred no appeal against appellate decree No. 219 of 1958 arising out of suit No. 136. On behalf of the plaintiff it was urged before the learned single Judge that the decree in appeal No. 219/58 operated as res judicata in the hearing of the appeal by this Court. The defendants, who are appellants before us, hotly contested the contention. The learned single Judge found that there was divergence of judicial opinion on the important question and an authoritative decision of the legal point involved would be helpful in resolving such controversies and thought it fit to refer the above mentioned question to us.

(3.) WE have heard learned counsel for the parties and we shall refer to the authorities cited by them at appropriate places.