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M. Maqbul Ahmad Vs. Mt. Fatma Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All81; 152Ind.Cas.199
AppellantM. Maqbul Ahmad
RespondentMt. Fatma Bibi and ors.
Cases ReferredChand Kour v. Partab Singh
Excerpt:
- - a further appeal to the privy council was unsuccessful. 7. we may make it perfectly clear that the view that the plaintiff's claim is based on the ground mentioned on paras, land 2 of the plaint does not imply that the plaintiff is necessarily entitled to succeed on that ground......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 24th 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 30th 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.....
Judgment:

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 24th 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 30th 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 8th 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.

4. Both the lower Courts have held that the plaintiff's cause of action in respect of the present claim is identical with that in the earlier suit. It seems to us that the lower Courts gave undue importance to the allegations contained in para. 3 of the plaint already referred to. As we read the plaint, the main ground on which the plaintiff claims relief is that he and Nehal Ahmad were joint promisees under an agreement of sale and that the plaintiff, having defrayed the costs of the Privy Council appeal and paid the entire costs awarded to the opposite party, is entitled to be reimbursed by the heirs of Nehal Ahmad to the extent of their shares. In other words, he professes to claim contribution by one who was jointly interested with him in making certain payments which he alone had to make. The reference in para. 3 of the plaint to the plaintiff being the manager of the affairs of Nehal Ahmad's heirs may either be considered to be wholly superfluous, or was intended to form an alternative ground for the relief claimed by the plaintiff. If it is superfluous, it may be ignored. If it was intended as an alternative ground for the same relief, we think that, so far as the plaintiff's suit is based on that ground, it is barred by Order 2, Rule 2, Civil P.C. It does not however follow that the plaintiff's suit, which is mainly based on the allegations contained in the first two paragraphs of the plaint, should be dismissed altogether.

5. The plaintiff's cause of action disclosed in the first two paragraphs of the plaint, is totally different from the cause of action on which the earlier suit was based. The expression 'cause of action' is sometimes understood to imply merely the infringement of a legal right. It has however a much wider significance. It was defined by a Full Bench of this Court in Murti v. Bhola Ram (1894) 16 All 165, as implying every fact which it would be necessary for the plaintiff I to prove if traversed in support of his right to the judgment of the Court. Similarly, it was observed by their Lordships of the Privy Council in Chand Kour v. Partab Singh (1889) 16 Cal 98, that:

the cause of action has no relation whatever, to the defence which may be set up by the defendant, nor does it depend on the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.

6. Now, in the case before us, the ground of the plaintiff's action is the liability of the defendant to contribute towards the expenses of the Privy Council appeal and the costs paid to the opposite party. It has no reference to the plaintiff having acted as the manager or agent on behalf of Nehal Ahmad or his heirs. In the previous case the ground, on which the plaintiff had claimed rendition of account, was that in the discharge of his duties as manager or agent he spent certain sums of money for his principals and was therefore entitled to recover them from the latter. So far as the main ground of the plaintiff's action is concerned, he does not allege and it is not necessary for him to allege that he acted as manager or agent on behalf of the defendant. It is clear to us that the two grounds of claim are wholly different. There is however no difference between the ground on which the previous suit was based and the plaintiff's allegation in para. 3 of the plaint in the present case. As already stated, the plaintiff's suit, so far as it is based on the alternative ground contained in para. 3 of the plaint, is barred by Order 2, Rule 2, Civil P.C.

7. We may make it perfectly clear that the view that the plaintiff's claim is based on the ground mentioned on paras, land 2 of the plaint does not imply that the plaintiff is necessarily entitled to succeed on that ground. The lower Court will have to decide all the issues arising in the case, including the one raised by the defendants in reference to the plaintiff's right to succeed. It will be open to defendant to show that the plaintiff is not entitled to succeed on the ground mentioned in paras. 1 and 2 of the plaint. All we decide at the present stage is that the plaintiff's claim, so far as it is based on the allegations found on paras. 1 and 2 of the plaint, is not barred by Order 2, Rule 2, Civil P.C.

8. The result is that we allow this appeal with costs, set aside the order of the lower Court and remand this part of the case to the Court of the first instance for disposal on the merits. The court-fee shall be refunded. The cross-objection is dismissed with costs.


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