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 the 20th June, 1922. This mortgage-deed was a deed by which Musammat Rafiq-un-nissa, defendant No. 1 had mortgaged her mortgagee rights. The plaintiff, therefore, sues on what is known as a sub-mortgage. Musammat Rafiq-un-nissa had become mortgagee under a mortgage executed on 4th 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 of Appendix (d), of the First Schedule of the Civil Procedure Code, that form being made a statutory form imposed by Order XLVIII, Rule 3, which provides that the form 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 20th 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 mortgagee rights but only a sub-mortgagee. In the judgment of the Subordinate Judge in the previous suit dated the 20th of 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 care fully considered whether Section 11 of the Civil Procedure Code 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 used 'cause of action.' 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 the 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 of the Civil Procedure Code, 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.
4. That the Legislature attached the same meaning to the word 'title' in Section 11 appears to me to be perfectly clear from Explanation 4, This explanation enacts that where a representative sues, the person that he represents shall be bound by a decision against the representative. This explanation thus uses as an instance of 'title' the same instance as is used by Bower.
5. The question of the cause of action is immaterial to a question of title, though it has constantly been confused with it in text-books in this country. One instance is to be found in Agarwala's Indian Practice, 1926, page 90. There a case is discussed where on the death of K.A. claimed land as its real owner on the allegation that K, was a mere benamidar for him, and the suit was dismissed. A. then sued to recover the same land as the heir of K. The suit was held not to be barred in a single Judge's decision of the Punjab High Court on the ground that the two titles were inconsistent. The commentator disagreed with this decision, but not on the ground that 'a cause of action' was a different thing to 'title.' He invoked Explanation 4 of Section 11 as an explanation which qualified the meaning of title. Explanation 4 runs: 'Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.' But it is clear that Explanation 4 is an explanation attaching to the word 'matter' used in the inducement to the section and is not an Explanation that can affect the word 'title.' The correct ground for dissenting from the Punjab decision should have been that whether a man is suing on the basis of a transaction, where the purchaser was acting for him, or whether he is suing as an heir of K, in each case he is suing as an individual, and therefore his title is the same. It would, of course, be different if he had brought the second suit as representing all the heirs.
6. Counsel for the respondent maintained that in the former suit the plaintiff sued as mortgagee and in the latter suit as sub- mortgagee. He, therefore, urged that the decision of the first suit that the plaintiff had no right as mortgagee was a decision on a different matter to that involved in the present suit, the present suit being concerned with the question whether the plaintiff had any rights as sub-mortgagee. He appears to me to be correct in this contention; but his contention ignores Explanation 4 of the section. The question is whether the plaintiff should in the former suit have raised the contention that he had a right to sell the property as sub-mortgagee and not as mortgagee. His failure to claim as sub-mortgagee rather than as mortgagee in the former suit can only be ascribed to want of proper legal advice. His mortgage-deed of the 20th June, 1922, clearly was a sub-mortgage and not an assignment of the mortgagee's interest. Now it seems to me impossible to hold that a person, who, if he had received proper legal advice, would have brought a suit on one cause of action but has brought it on a wrong cause of action, that such person ought not to have sued in the proper way, Explanation 4 will, therefore, apply and render his second suit barred.
7. The Counsel has put before me certain decisions as favouring his contention that this suit was not barred by Section 11. One of these was a case where an owner had sued a person for possession of a property on the ground that the lease had determined. The suit was dismissed on the ground that there was no lease proved. It was held that he was not barred from bringing another suit as owner against the same defendant as trespasser. It may well have been in this case that there was no duty on the part of the plaintiff in the suit based on the lease to raise an alternative plea for possession as owner against a trespasser. To have done so might have weakened his case based on the lease. It might have involved a large amount of extra evidence. The suit on the lease was of a simpler character than one which would raise the question of the plaintiff's title. There was nothing, therefore, in Explanation 4 which would apply.
8. Generally speaking, where failure to plead a specific cause of action, either as the sole course or as an alternative course is due to a wrong view of the law, Explanation 4 will certainly apply. Where such failure, however, is due to the plaintiff having an honest belief as to a fact or series of facts, being sufficient to entitle him to the relief claimed, it will seldom be held that he was bound to raise a different cause of action or an alternative cause of action. Each case must be decided on its merits.
9. For the above reasons, I hold that the bringing of this suit was barred, and I allow this appeal with costs throughout.
10. The respondent's Counsel has asked for leave to appeal. I think he should be given leave.