RAFIQ-UN-NISSA BIBI Vs. ABDUL SHAKUR KHAN

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiff-respondent for recovery of a sum of Rs. 359, principal and interest on foot of a mortgage-deed, dated 20 June 1922. This mortgage-deed was a deed by which Mt. Rafiq-un- nissa, defendant 1 had mortgaged her mortgagee rights. The plaintiff, therefore, sues on what is known as a sub-mortgage. Mt. Rafiq-un-nissa had become mortgagee under a mortgage executed on 4 April 1915 by one Abdul Razzaq. The plaintiff asks to recover his money by sale, if necessary, of the actual property and not merely by sale of the mortgagee rights. In his plaint he has indicated that he desires a decree in form No. 9, appendix (d), Sch. 1, Civil P.C. that form being made a statutory form imposed by Order 48, Rule 3, which provides that the forms given in the appendices shall be used, for the purposes therein mentioned. Both the lower Courts have decreed the suit. The objection was taken in those Courts that this suit was barred under the rule of res judicata by a previous suit. It appears that in a former suit the plaintiff sued for recovery of the money under his mortgage deed by sale of the mortgaged property, and set up then that the mortgagee rights had been actually assigned to him under the deed of 20 June 1922. Of course if he was assignee of the mortgagee rights, he was exactly in the same position as if he was mortgagee and could do so. That suit was dismissed on a finding that the plaintiff was not an assignee of the mortgage rights but only a sub-mortgagee In the judgment of the Subordinate Judge in the previous suit dated 20 October 1926 the Subordinate Judge went on to consider whether the plaintiff could have got the relief he claimed by suing as a sub-mortgagee and not as an assignee of the mortgagee rights, and held that he could, if his suit had been so framed and if the proper Court-fee had been paid.

(2.) Now the lower appellate Court carefully considered whether Section 11, Civil P.C. did bar the present suit. It held that it did not for two reasons. One reason was that the causes of action of the two suits were different. This reason appears to me to have no force. Nowhere in Section 11 is the term cause of action used. The other reason given is that the plaintiff was not suing under the same title in each suit. It is clear from the judgment that the Subordinate Judge considered that a person suing as an assignee of a mortgagee right was a person litigating under a different title from a person suing as a sub-mortgagee. If he was right, then there was no bar.

(3.) The expression "title" has been constantly misinterpreted. That term, as used in Section 11, Civil P.C. refers to the capacity or interest of a party, that is to say whether he sues or is sued for himself, in his own interest, or for himself as representing the interest of another or as representing the interest of others along with himself. It has nothing to do with the particular cause of action on which he sues or is sued. The instance given in the well-known authority on Res Judicata by Bower, 128 of the 1924 edition, is that of a man suing on one occasion as an individual, in his personal interest, and on another occasion suing in a representative character where his interest is shared with that of other persons. It appears to me desirable to quote the whole passage: A party who, though identical in name, litigates in different characters in the two proceedings, is, in contemplation of law, and in the correct sense of the civilians, two separate and distinct persons, so that a decision for, or against a man who appears in a representative character, is not conclusive in favour of, or (as the case may be) against the same man appearing in subsequent proceedings as an individual, or in a different representative character. Conversely, two persons distinct in name, but substantially identical in title and interest, constitute in law one and the same party for the purposes of estoppel by res judicata, as for all others,