M MAQBUL AHMAD Vs. MTFATMA BIBI

JUDGEMENT

(1.) This is a plaintiff's appeal and arises from a suit brought by him for recovery of Rs. 2,764-5 on certain allegations which will be presently mentioned. Both the lower Courts dismissed the suit in respect of some items on the preliminary ground that it is barred by Order 2, Rule 2, Civil P.C. It is said that the plaintiff might and ought to have included this part of his claim in the subject-matter of the previous action.

(2.) The plaintiff and his deceased brother Nehal Ahmad were joint owners of certain properties which do not appear to have been divided. Nehal Ahmad died sometime before 24 November 1924, leaving a number of heirs, some of whom were minors. The plaintiff managed the entire property and all the affairs of the family on behalf of himself and the heirs of Nehal Ahmad. He instituted a suit on 30 August 1929, against the heirs of Nehal Ahmad for rendition of account. His case was that the disbursements being set off against the income which he received as manager on behalf of the defendants, a certain sum of money would be found due to him which he was entitled to recover from them (the defendants). It does not appear from the paper-book whether the suit was decreed to any extent. We are however informed by the learned Counsel for the respondents that the suit was eventually compromised.

(3.) The suit, which has given rise to the present appeal, was instituted by the appellant on 8 December 1930. It was alleged in the first two paragraphs of the plaint that the plaintiff and Nehal Ahmad entered into an agreement with Mahmud Hasan and Mt. Quraishi Begam, under which the latter promised to sell a certain village to the former but that the promisors, in breach of the agreement sold the property to one Saadat Ali. Thereupon the plaintiff and Nehal Ahmad instituted a suit for specific performance of the contract for sale. Their suit was decreed by the Court of first instance but dismissed by the High Court. A further appeal to the Privy Council was unsuccessful. The plaintiff alleges that he had to defray all the expenses of the Privy Council appeal and had, besides, to pay the cost's of the opposite party awarded against himself and Nehal Ahmad. Accordingly the plaintiff claimed certain items, which represent the share of Nehal Ahmad, his co-promise under the agreement of sale. The plaintiff goes on to allege, in para. 3 of the plaint, that he managed all the joint affairs of the heirs of Nehal Ahmad and of himself and had to pay the entire costs of the Privy Council appeal, implying that he is entitled to receive what he spent on behalf of Nehal Ahmad and his heirs.