JAGAN NATH Vs. KUNJ MAN

JUDGEMENT

(1.) THERE are certain facts which are necessary to explain the decision in this suit. According to the plaintiff respondent s own story there was a certain house which was acquired by a joint family of which he was a member. It became joint family property. The defendants appellants before us, according to him, began to disturb the plaintiff and the joint family in possession of the property and began to do various improper acts in respect to it, He accordingly brought this suit for an injunction to restrain them. He also admitted that his brother Balmakund was the managing member of the joint family, that this brother Balmakund had brought a former suit in respect to this very house against the very same defendants on the very same cause of action, which suit had been dismissed . He admitted that prior to the institution of that suit his brother Balmakund consulted him as to its institution and he gave his consent thereto, Both the court of first instance and the lower appellate court have on these facts held that the present suit is barred by the principle of res judicata in that the former suit was brought by the managing member of the family with the present plaintiff s consent and knowledge and on his behalf, A second appeal was preferred to this Court, A single Judge who heard it reversed the decision of the lower appellate court and remanded the suit for decision on its merits to the court of first:, instance. The learned Judge held that Explanation VI of Section 11 of the Code of Civil Procedure did not apply. We think that on the facts admitted by the plaintiff in his plaint and in his statement in court the present suit is clearly barred by the rule of res judicata. Actually as a matter of fact, though he was arrayed as a preformed defendant in the former suit, the present plaintiff was a plaintiff to that suit. Though in his plaint Balmakund did not say that he sued in his capacity as managing member of the family, still the plaintiff has had to admit in the present suit that he actually did sue in that capacity. If the present suit were not barred, there would in the case of a joint family be endless litigation, as no other member of the family would be bound by the decision arrived at in the suit brought by the managing member on behalf of the family. We think the question is not open even to argument. We allow the appeal, set aside the decision of this Court, and restore the decree of the court below. The appellants will have their costs in this Court.