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Firm Sundar Lal Kapoor Chand Vs. Firm Bawan Prasad Kamta Prasad - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in96Ind.Cas.694
AppellantFirm Sundar Lal Kapoor Chand
RespondentFirm Bawan Prasad Kamta Prasad
Cases ReferredJamaitunnissa v. Lutfunnissa
Excerpt:
civil procedure code (act v of 1908), section 11 - res judicata--cross suits between same parties--decision, in one, whether operates as--res judicata in the other. - - and the finding at which the learned judge had arrived in the previous suit was clearly fatal to the claim of the allahabad firm......both suits arise out of a contract for the sale of certain sleepers by the allahabad firm to the agra firm. the agra firm refused to take delivery of the sleepers on certain grounds, and they were eventually sold at a less price with the consent of both parties to a third person. the agra firm had paid a sum of rs. 200 as earnest money in respect of the purchase. they instituted a suit in the small cause court at agra for the return of this rs. 200 and for rs. 250 damages. this suit was dismissed by the small cause court on a finding that the original contract had been cancelled with the consent of both parties and that no many was payable to either party in respects of it. before this decision the allah-dai firm had filed a suit in the small came court at allahabad claiming damages.....
Judgment:

Daniels, J.

1. These revisions arise oat of two Small Cause Court suits between the same parties. The applicants are a firm at Agra and the opposite party a firm at Allahabad. Both suits arise out of a contract for the sale of certain sleepers by the Allahabad firm to the Agra firm. The Agra firm refused to take delivery of the sleepers on certain grounds, and they were eventually sold at a less price with the consent of both parties to a third person. The Agra firm had paid a sum of Rs. 200 as earnest money in respect of the purchase. They instituted a suit in the Small Cause Court at Agra for the return of this Rs. 200 and for Rs. 250 damages. This suit was dismissed by the Small Cause Court on a finding that the original contract had been cancelled with the consent of both parties and that no many was payable to either party in respects of it. Before this decision the Allah-Dai firm had filed a suit in the Small Came Court at Allahabad claiming damages for breach of contract. No application was made to have the two suits tried together, or to have the second suit stayed. Before the second suit came on for hearing the Agra suit had been decided. A plea of res judicata was accordingly raised in the suit at Allahabad. The Judge, of the Small Cause Court decided that the finding in the Agra suit did not operate as res judicata, and it is principally in respect of this finding that the revision is pressed. The Judge of the Small Cause Court based his decision on the ground that the question of recovery of damages was not in issue in the former suit. Before me it is argued that, the basis of the Agra decision is the statement in the judgment that had any money been payable to the plaintiffs, they would have insisted upon its payment out of the price paid by the ultimate purchaser of the disputed sleepers. Reading the judgment as a whole there is no doubt whatever in my mind that the finding on which the judgment was based was that the original contract had come to an end and been cancelled by the mutual consent of both parties. The learned Judge says; 'I am of opinion that both parties had absolved each, other from the liability. I, therefore, dismiss the suit.' No doubt the issue originally framed was: 'To what amount, if any, are the plaintiffs entitled from the defendants?' but the issue on which the case was heard and decided was whether there was any subsisting contract' in respect of which a cause of action could be based. This issue was obviously raised also in the Allahabad suit; and the finding at which the learned Judge had arrived in the previous suit was clearly fatal to the claim of the Allahabad firm. It is objected, however, that the claim could not operate, as res judicata because the Agra suit was decided in favour of the Allahabad firm. No question of the Allahabad firm being deprived of a right of appeal could arise as the decision was one of a Small Cause Court which was final between the parties. Had the case been on the regular side it is possible that the plaintiffs, if they wished to attack the finding so far as it was against them, might have adopted the course laid down in the Full Bench case of Jamaitunnissa v. Lutfunnissa 7 A. 603 : A.W.N. (1885) 89 : 4 Ind. Dec. (N.S.) 657. However that may be it appears to me clear that the issue raised, in the Allahahad suit had been raised, in the previous suit and heard and finally decided. In my opinion, therefore, the learned Judge of the Small Cause Court at Allahabad was wrong in holding that the decision did not operate as res judicata.

2. I, therefore, allow Revision No. 35 against the Allahabad decision and dismiss Small Cause Court Suit No. 2588 of 1925 with costs in all Courts. I dismiss Revision No. 36 of 1926 against the Agra decision. The respondents in that case will be entitled to their costs of that revision.


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