SHAH PREMCHAND Vs. SHAH DANMAL

JUDGEMENT

(1.) THIS is a plaintiff's first appeal against a judgment and decree of the Civil Judge, Sirohi, dated 26-8-1950. The plaintiff Premchand brought, a suit against the defendant Danmal in the Court of the District Judge Sirohi on the allegation that the plaintiff and the defendant carried on a partnership business in cloth and yarn and also of commission agents in Kurnool in the Madras Presidency under the name and style of Deoraj Danmal in which the plaintiff had a five annas share, the defendant a nine annas share, and half an anna share was allotted to charity. It was stipulated between the parties that accounts would be made up on Deepawali every year, and the plaintiff alleged that accounts had accordingly been settled up to the Deepawali of 1946. As the plain-toff wished to go to his native village Manora in the former State of Sirohi, the parties are stated to have further gone into accounts upto Falgun Sudi 8, Smt. 2003 corresponding to 1-3-47, and a sum of Rs. 4444/10/9 was found due to the plaintiff and credited to his account. The plaintiff further alleges to have gone to Kurnool for a brief period some time in December, 1947, when relations between the plaintiff and the defendant became considerably strained. The defendant gave a notice to the plaintiff which he received at Kurnool on 16-12-47 and further notices appear to have been exchanged between the parties and finally the plaintiff stales to have given a notice to tile defendant from his native place on 26-1-1948, to the effect that the plaintiff wanted to dissolve the partnership and to have the accounts gone into and the respective liabilities of the partners settled. Eventually, the plaintiff filed the present suit on 22-4-48 for dissolution of the partnership and rendition of accounts and valued his suit at a sum of Rs. 5100/and offered to pay additional court-fee if and when so required by the Court. It may be stated here that the plaintiff alleged that he and the defendant were residents of villages Manora and Jawal respectively in the former State of Sirohi.

(2.) THE defendant admitted the partnership business and the shares therein as alleged by the plaintiff, but pleaded that as the defendant mostly lived in his own village viz. , Jawal in the former State of Sirohi, the plaintiff mismanaged the partnership business, misappropriated considerable sums of money and, therefore, the defendant had filed a suit against the plaintiff in the District Munsiif's Court at Kurnool for dissolution of partnership and rendition of accounts on 3-3-48, about a month and a half before the plaintiff filed his present suit. THE defendant contended that the plaintiff had filed his suit on having come to know of the defendant's suit at Kurnool. THE defendant further stated that the plaintiff had left for his native place Manora in March 1947 and had removed some account books and important papers there. THE defendant valued his suit in the Kurnool Court at a sum of Rs. 100/- only. THE defendant further pleaded that the Sirohi Court had no jurisdiction to entertain the suit filed by the plaintiff, because the subject-matter of the suit was a partnership business situate not in Sirohi but in Kurnool, and also because the entire business of partnership was conducted in the latter place.

(3.) LEARNED counsel for the respondent next referred us to some other cases where it has been held that a plaintiff cannot get rid of an estoppel or escape the effect of the previous suit by an arbitrary valuation of the second suit or by enhancement of the claim or by over-valuation or by adding a claim for mesne profits. We have been referred in this connection to -- 'tamiz-un-Nissa v. Syd. Md. Hussain', AIR 1928 All 127 (H); -- 'sarupa v. Khemlal', AIR 1928 Lah 929 (I) and -' Ishwar Dutt v. General Assurance Society Ltd. ', AIR 1937 Lah 346 (J ). A careful examination of this type of cases shows that in some of them, both suits were brought by the same paintiff who put a certain valuation upon his first suit and having failed to substantiate his claim, sought to get rid of his failure by fixing a higher valuation in a subsequent suit by some kind of subterfuge. To allow the plaintiff in such cases to urge that his second suit was not barred because the Court which decided the first suit was not competent to entertain the second one, would be clearly permitting him to take advantage of his own fraud and to indulge in an abuse of the process of the Court. Tims in -- 'ishwar Dutt v. General Assurance Society Ltd. (J)', the plaintiff who was an agent, of an insurance company brought a suit for an account claiming commission due to him for a certain period. He had previously instituted a suit for a smaller amount in the Court of Small Causes wherein he claimed commission beginning from the same point of time, but for a shorter period. Both suits were based on the same agreement. The previous suit was dismissed by the Court of Small Causes on the finding that the plaintiff had committed a breach of the agreement and forfeited his right to the commission. It was held that the subsequent suit was barred. A contention was raised that the Small Cause Court which tried the first suit was incompetent to try the subsequent suit. This contention was, however, repelled, and in our opinion, quite correctly. It is worthy of notice that the plaintiff in the two cases was the same person, who in the first instance, having moulded his claim for a shorter period and lost, wanted to evade that decision by raising a larger claim based on practically the same cause of action in the subsequent suit. Another illustration is furnished by the case of a landlord who brings a suit against an alleged tenant for a certain amount of rent for a certain period and having failed to prove the relationship of landlord and tenant may institute a second suit for a larger amount and for a longer period. We are of opinion that in such cases although Section 11 does not apply in terms, the subsequent suit must be held to be barred on general principles of law because any other course would tantamount to allowing a fraud to be perpetrated on the Court.