ALIMAHOMED AKBARALLY Vs. SHAMSUDDIN DADAMIYA

JUDGEMENT

(1.) This is a suit by the plaintiffs for dissolution of partnership and accounts. The defendant No. 1 raised a plea of jurisdiction on the ground that he was an agriculturist, within the meaning of the Dekkhan Agriculturists Relief Act, and on July 7, 1925, by consent Kajiji J. ordered that a preliminary issue as to whether the first defendant Shamsuddin Dadamiya was an agriculturist within the meaning of the Dekkhan Agriculturists Relief Act at the time of the accrual of the cause of action or at the date of the filing of the suit should be referred to the Commissioner. The Commissioner ordered defendant No. 1 to file his accounts and gave him time for the purpose. Time was taken and ultimately accounts were filed. But defendant No. 1 also desired to lead evidence that he was an agriculturist by reason of his being personally engaged in agricultural labour under g. 2 of the Dekkhan Agriculturists Relief Act. The solicitors for the plaintiffs objected to this evidence but the objection was overruled, On this oral evidence, the Commissioner, without going into the question of accounts or income, has reported in favour of defendant No 1. The plaintiffs have filed exceptions to the Commissioner's report.

(2.) It is argued for the plaintiffs that defendant No. 1 had never, in the pleading or until the proceedings before the Commissioner, alleged that he was personally engaged in agricultural labour and that the plaintiffs understood that he sought to bring himself within the purview of the Dekkhan Agriculturists Relief Act on the ground that his agricultural income exceeded his non-agricultural income and that it was under this impression that the plaintiffs consented to the order of reference to the Commissioner ob July 7, 1925. It is contended that in any case the Court has no power to refer and the Commissioner to hear evidence on the question whether defendant No. 1 was personally engaged in agricultural labour. The report should, therefore, be rejected on this ground alone without going into the merits.

(3.) For the defendant No. 1 it was argued that had the Court made such a reference ad invitum, I should have had no power to revise the order. A consent order is analogous to res judicata and places the defendant No. 1 on even stronger ground than an order ad invitum and the practice of this Court is alleged to be in favour of the broader and not merely of the narrower reference to the Commissioner. The objection of res judicata is not confined to Section 13, Civil Procedure Code (Act X of 1877) : Ram Kirpal Shukul V/s. Mussumat Rup Kuari (1883) L.R. 11 I.A. 37, 41. The present order by consent operates to stop the plaintiffs from their present contention : In re South American and Mexican Company : Ex parte Bank of England [1895] 1 Ch. 37, 44.