1. This is a plaintiff's appeal in a suit against his commission agent praying for rendition of accounts for the Sambat years 1973 to 1975 and for a decree for Rs. 8,000 or whatever additional amount may be found due to the plaintiff by the defendant. The plaintiff is the proprietor of the firm, Lachhman Das Bhojraj at Jalaun, and the defendant Kanhaiya Lal is the proprietor of the firm Kanhaiya Lal Baijnath at Shamli in the district of Muzaffarnagar. The plaintiff's case is that there were transactions of purchase and sale of wheat and the result of are accounting on 13th October 1918, was that a sum of Rs. 6,838-12-6 was found to the credit of the plaintiff. The defendant pleaded that no money was due to the plaintiff. His case was that the plaintiff entered into certain transactions with his shop at Jalalabad and Shamli and on an account of all the transactions having been settled it was found that a sum of Rs. 5,260 was due to the defendant by the plaintiff. The Subordinate Judge holding that the defendant admitted the agency passed a preliminary decree on 6th January 1922. There was an appeal to this Court and on 20th January 1925, the defendant's appeal was allowed, the decree of the Subordinate Judge set aside and the case remanded to the Court below with certain directions. It is admitted by the learned advocate for the respondent that the remand was one under the provisions of Rule 23, Order 41, Civil P.C. The case having gone back to the Court of the Subordinate Judge of Muzaffarnagar the learned Subordinate Judge recorded the statement of the parties and framed issues. It was admitted before him that up to 13th October 1918, Rs. 6,838-12-6 was due to the plaintiff from the defendant on account of profits of khatti transactions at Shamli. The defendant's case was that the plaintiff purchased some other khattis at Jalalabad and some grain at Baraut and got the payment made for them by the defendant and finally there was a balance of a large sum of money in favour of the defendant's firm. The learned Subordinate Judge states in the judgment at p. 20:
I examined the parties and find that the only points on which they ate at difference are about this alleged settlement of account, about the fact whether the plaintiff entered into any transactions at Jalalabad and Baraut through the defendant and the defendant had to pay anything on the plaintiffs account about these transactions.
2. The points, therefore, that he had to decide were whether the plaintiff entered into the Jalalabad transactions and the Baraut transactions and whether the defendant had to pay anything on account of the plaintiff for these transactions.
3. The learned Subordinate Judge framed the following issues:
(1) Had Fakir Chand and Munshi Lal any authority on behalf of the plaintiff to settle accounts with the defendant and (2) If go, did those persons actually settle the account with the defendant and strike balance of Rs. 5,260 in favour of the defendant and can the plaintiff therefore not now call upon the defendant to render an account
4. He has found that the defendant had proved that the plaintiff entered into the Jalalabad and Baraut transactions and that a sum of Rs. 5,260 was the balance found due to the defendant on an account being settled by Fakir Chand and Munshi Lal who had authority on behalf of the plaintiff to settle account with the defendant. He, therefore, dismissed the suit.
5. The plaintiffs have come up in appeal before us and it is contended by the learned advocate for the appellant that the plaintiff never authorised the sales and purchases of wheat at Jalalabad and Baraut, that the plaintiff never entered into any business transaction at Jalalabad and that the finding in Suit No. 48 of 1920 that there was no such transaction was res judicata and could not be gone into in this case. It was further submitted that, as a matter of fact, there was no settlement as alleged in para. 23 of the written statement.
6. The first point which we have to decide is whether the decree and the finding of the Subordinate Judge in Suit No. 48 of 1920 bars the trial of the question in the present suit.
7. In para. 11 of the plaint the plaintiff referred to the suit and stated that the defendant had brought a false suit. In para, 24 of the written statement we have the defendant's version about the suit. It was admitted that the plaintiff in that suit had denied having entered in any transaction but as Kanhaiya Lal had left the case to be decided on the oath of the plaintiff the plaintiff took the oath and the claim was dismissed.
8. To enable us to see whether there was the alleged settlement we have to decide whether the Jalalabad, Shamli and Baraut transactions did or did not take place. We have some to the conclusion that the finding arrived at in that suit that Ram Sarup had not entered into those transactions at Jalalabad cannot now be agitated in this suit.
9. It is contended by the learned advocate for the respondent that as the plaintiff had not raised the question of res judicata before the Subordinate Judge at the trial of the suit after remand he cannot now be permitted to raise the point, specially as the point was never urged when the case was before this Court in appeal (F.A. 120 of 1922), It was said that the judgment in that case directed an enquiry to be made whether there was the settlement as alleged in para. 23 and the point not having been raised either in the High Court or before the Subordinate Judge on the analogy of Expl. 4 to Civil P.C.S. 11, the present appeal is barred. We cannot accept the contention. All the facts necessary for determining the point were before the Court and the parties had admitted the fact of the suit and the plaint and the necessary papers are before the Court. We cannot accept the contention of the learned advocate that permitting the plaintiff to plead res judicata would be going behind the judgment of this Court in F.A. 120 of 1922. The order of remand was clearly an order under Rule 23, Order 41 and the decree, which follows the judgment says as follows:
It is ordered... that the case be and it hereby is sent back to the Court of the said Subordinate Judge with directions to summon the parties before it and to strike careful and considered issues so that the merits of the case may he gone into from the points of view of para. 23 of the written statement, para. 6 of the plaint, and any other matters which to the Court examining the pleadings may seem relevant and proper,
10. It is impossible to hold that the order of remand in any way prevented the Court below or prevents us from holding that the point of res judicata had not been properly raised and that we are in any way going behind the order passed in F.A. 120 of 1922 remanding the case. In support of the contention of the learned advocate that Expl. 4 to Section 11 prevents our going into the question of res judicata reference was made to the case of Ram Kishan v. Lalta Singh : AIR1928All527 and to the case of Raja of Ramnad v. Velasami Tewar A.I.R. 1921 P.C. 23, Hook v. Administrator General of Bengal A.I.R. 1921 P.C. 11. These cases do not, in our opinion, in any way, apply to the facts of the present case and are not of any help to us in deciding the question of res judicata.
11. It was further contended by the learned advocate for the respondent that the previous suit was for recovery of money on account of dealings between 23rd December 1918 and 2nd April 1919 and as the plaintiff's suit related to transactions prior to this date the finding could not amount to res judicata. It was further contended that at the most the judgment shows that nothing was due on the transactions between the 23rd December 1918 and 2nd April 1919 but that did not show that there was anything due to the plaintiff. We are unable to follow this argument.
12. It was further submitted that there were insufficient materials on the record to find that the decision of the previous case amounted to res judicata and that the two suits were not between the same parties. We find from the statement of the defendant printed at p 14 that he stated that he had sued for Jalalabad shop in the name of Kanhaiya Lal Balchand and for the Baraut shop in the name of Kanhaiya Lal Baijnath. No question arises as regards the transaction relating to the Baraut shop as that suit was instituted after the institution of the present suit in the Court of the Munsif of Kairana. (The judgment then discussed evidence and concluding that there was no settlement of account binding on the plaintiff proceeded.) There remains the question of the transactions entered into by the defendant Kanhaiya Lal at Baraut. It appears to us that the plaintiff cannot get behind these transactions by urging that Fakir Chand and others had no legal authority to act on his behalf. The defendants have, in our opinion, given sufficient evidence for us to hold that they honestly believed that the plaintiff had authorized his own relations to enter into transactions relating to Shamli. Fakir Chand is the natural father and the other persons who entered into the contract on behalf of the plaintiff were admittedly his natural relations, and although they might legally not have any right to enter into a settlement of account under their authority as general attorneys they certainly could act as agents for particular transactions which in our opinion they did with either the implied or express authority from the plaintiff and the plaintiff is bound to pay the defendant the sums on account of the Baraut transactions.
13. The learned advocate for the appellant suggested that we might pass a preliminary decree and when the final accounts are adjusted the defendant's claim for the Baraut transactions should not be set up as a set-off against the plaintiff's claim. We do not propose to pass a preliminary decree in the case. The litigation has lasted for eight years and we think there are sufficient materials on the record of this case to pass a final judgment between the parties. The defendant being admittedly a commission agent of the plaintiff no question of set-off arises. The money which remains in the hands of the defendant after all the transactions are taken into account the defendant is bound to pay back to the plaintiff. Admittedly on 13th October 1918 the sum of Rs. 6,838 was due to the plaintiffs from the defendants. In the plaint in Suit No. 48 of 1920, para. 12 at p. 71, it was admitted that Ram Sarup had paid a sum of Rs. 5,438 to the plaintiffs, that is, the firm Kanhaiya Lal Balchand, through the shop of Kanhaiya Lal Baijnath (the defendants in this case). The defendants must, therefore, pay back to the plaintiffs the sum of Rs. 5,438 as they admittedly had that sum in their hands which they allege they had transferred to their other firm. As regards the rest of the plaintiffs' claim we think that the plaintiffs have failed to show that the defendants had anything more than Rs. 5,438 in their hands. They are, therefore, entitled to a decree for that sum. We allow the appeal, set aside the decree of the Court below and decree the plaintiffs' claim for Rs. 5,438 with interest at the rate of 6 per cent from 13th October 1918 to the date of payment. Parties will pay and receive costs in both the Courts in proportion to failure and success.