DEVICHAND UTTAMCHAND Vs. MANGILAL SUMRATMAL PARAKH

JUDGEMENT

(1.) 1. The non-applicant brought a suit on partnership accounts against the applicants in the Court of the Sub-Judge, Second Class, Bemetara. There was a preliminary objection to jurisdiction, but that has been found against, the applicants and is not again pressed. There was also however a preliminary objection on the ground of res judicata. The applicants had brought a suit against the non-applicant in the Court. of Small Causes, Poona, and, although that suit was actually filed after the plaint had been presented in the present case, an ex parte decree was passed against the non-applicant before, the applicants had been served with summonses in this case. It was contended that on the principle of constructive res judicata and according to Expl. 4, Section 11, Civil P.C., the present claim of the non-applicant is barred, because he should have set it up as a defence in the Poona Court.

(2.) THE lower Court has found that the suit is not barred by res judicata, and this application for revision is against that finding. It seems to me however that both on legal and equitable ground the finding is correct. As already stated above, the present suit was actually brought before the suit in the Poona Court, and, although that would not prevent the decision in the Poona Court operating as res judicata, it seems clear that according to Section 10, Civil P.C., the suit in Poona Court should have been stayed pending the decision of this case. Apart from that, from the order-sheets there seems reason to believe that the applicants evaded service of summonses in the present case until they obtained an ex parte decree in their own suit. The plaint in the present case was presented on 19th October 1932 and summonses were ordered to issue for 20th December. On that date they were returned unserved, and an order for a special process-server was passed.

(3.) ON legal grounds, too, I am of opinion that the decree of the Poona Court cannot operate as res judicata, because that Court was not competent to try the present suit. The words of Section 11, Civil P.C., are clear, and, if the first Court was not competent to try the subsequent suit, its decision cannot operate as res judicata in the subsequent suit. It is no good contending that Section 11 is not exhaustive and that the principle of res judicata is wider than Section 11, as was held in Velji Dayalji v. Firm of Nandlal A.I.R. 1926 Sind 236. That principle can only be applied when it. is not expressly forbidden by Section 11, but where the wording of Section 11 is clear and the first Court is not competent to try the suit, the principle of res judicata cannot apply.