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Nizam UddIn Vs. Ahmad Bhai and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All799; 103Ind.Cas.365
AppellantNizam Uddin
RespondentAhmad Bhai and Co.
Excerpt:
- - the plaintiff attempted to have the ex-parte decree set aside but without success. 11, and this decision clearly covers the present case......the present plaintiff-appellant in the small causes court agra, in 1923, which was based on the mutual account from the 6th july 1921, to the 7th november 1921, and he obtained a decree ex parte against the present plaintiff. the plaintiff attempted to have the ex-parte decree set aside but without success. he has now brought the present suit. in the plaint, which is dated the 10th april 1924, he claims a sum of rs. 867 on the basis of an account due from the defendant from the 9th june 1921, to the 3rd october 1921. both the courts below dismissed the plaintiff's suit on the ground of res judicata but they have also expressed the opinion that the plaintiff's account in the present suit is not a genuine account.2. it has been urged in this court on behalf of the appellant that each of.....
Judgment:

Kendall, J.

1. This appeal arises from a suit in which the parties are found to have carried on a mutual and common account; each of them purchased boots and shoes from the other. The defendant-respondent brought a suit against the present plaintiff-appellant in the Small Causes Court Agra, in 1923, which was based on the mutual account from the 6th July 1921, to the 7th November 1921, and he obtained a decree ex parte against the present plaintiff. The plaintiff attempted to have the ex-parte decree set aside but without success. He has now brought the present suit. In the plaint, which is dated the 10th April 1924, he claims a sum of Rs. 867 on the basis of an account due from the defendant from the 9th June 1921, to the 3rd October 1921. Both the Courts below dismissed the plaintiff's suit on the ground of res judicata but they have also expressed the opinion that the plaintiff's account in the present suit is not a genuine account.

2. It has been urged in this Court on behalf of the appellant that each of the parties had a separate account and that the transactions were independent and that each could form a basis of a separate litigation; that is to say, the present plaintiff could sue the defendant for goods sold by the plaintiff to the defendant, while the present defendant could sue the plaintiff independently for goods sold by the defendant to the plaintiff. It has, however, been found as a fact by the Courts below that the account is a common and mutual account and this has been admitted by the present plaintiff in the trial Court. The lower appellate Court has referred to the words of Sir Barnes Peacock quoted in the judgment of their Lordships of the Privy Council and reported in the case of Hook v. Administrator-General of Bengal A.I.R. 1921 P.C. 11, and this decision clearly covers the present case. There is no force in the present appeal and it is dismissed with costs.


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