1. The defendant has filed this revision petition against the decision of the Subordinate Judge of Coimbatore remanding the suit which was dismissed by the District Munsif of Udamalpet. The only question which arises is whether the judgment in S.O.S. No. 688 of 1925 on the file of the same District Munsif's Court operated as resjudicata. The facts were in brief that the plaintiff's father had been in partnership with the defendant, and that on 16th June 1924 they agreed to dissolve, the defendant taking over some of the assets and the plaintiff's father some of the outstanding in settlement of their mutual claims. The earlier suit was brought against a debtor of the firm and against the defendant here, and it is necessary to look into the terms of the plaint in order to ascertain what exactly the nature of that suit was. After reciting the dissolution of the partnership and what took place on 16th June 1924 the plaint said:
As per the above list (i. e., a list given by the defendant to the plaintiff's father) it is just that a sum of Rs. 152-14-0 together with interest, should be paid by defendant 1 (the debtor). In case the Court is of the opinion that it is not just that defendant 1 should pay the amount, it is just that the said amount should be recovered from defendant 2 (defendant here).
2. The substance therefore of the claim was that if the money was found due from the debtor, the Court was to decree it from him; if not due, then from defendant 2 in that suit, now the defendant here, in consequence of some arrangement between the parties. In the written statement which this defendant filed he denied that if the money was not paid by the debtor he had undertaken to pay it himself. As it was a small cause suit, there were of course no express issues, but the judgment makes it clear that the first point for decision was whether the debtor owed the money. The District Munsif found on this that he had had no dealings with the firm and he did not owe the amount. He then turned to decide the second point whether defendant 2 (defendant here) was liable to pay the amount, and his conclusion is expressed thus:
If the suit claim is found not to be really due, defendant will not be liable for it unless he agreed to make good the amount if it was not recovered from defendant 1,
and he concludes by finding defendant 2, not liable. Between these two passages there appear two other sentences relating to the plaintiff's competence to bring another suit against this defendant. However let us first look at the plaint in the present case. It recites again that a list was given by the defendant to the plaintiff on 16th June 1924 of the amounts outstanding, including the plaint debt. It then goes on to describe the previous suit and how it ended, and para. 7 is as follows:
At the time-when the defendant gave up the-list and the receipts it was agreed that the-above-mentioned amounts wore really due to the partnership and that the defendants was responsible for the said amounts and on that-agreement the partnership was dissolved. As the suit amount has been lost from the-amounts due to the plaintiff's-share and as the-defendant is anyhow bound to make it good, the defendant is bound to pay the amount to the plaintiff's father,
3. The cause of action for this suit is-dated 22nd December 1925. No description of how it arose is given but am informed that it is the date on which the previous suit was decided. It goes without saying that no cause of action can have arisen from that circumstance, and the remainder of the plaint shows that the only cause of action there cant have been would consist in an agreement by the defendant entered into on 16th June 1924.
4. I am therefore totally unable to see as indeed the learned District Munsif was unable to see, that the plaintiff had any new grounds for bringing this second suit. Even however assuming that to obtain a decree for such sum of money from the defendant he had more than one alternative basis of claim, I think it is abundantly clear from such decisions as Muhammad Rowther v. Abdul Rahiman Rowther A.I.R. 1923 Mad. 257 (of 46 Mad.) Ramiah v. Lakshmi Narayanan A.I.R. 1926 Mad. 234; Marimuthu Goundan v. Muniammal : AIR1927Mad120 that he must have included both alternative claims in his original plaint. It was not a case of incompatibility of statement as was dealt with in Dolakhataji v. Balya Knoo A.I.R. 1922 Bom. 29. Nor can find that the authority which the learned Subordinate Judge has relied upon Katrivi v. Kannan : AIR1925Mad1172 , has any bearing because that related to claims based upon two distinct marupata dated 1902 and 1876. Moreover Explain. 4, Section 11, Civil P. C, is not referred to in the judgment. The only possible ground, I think, which the-plaintiff could have for claiming a right to bring another suit lies in the observation of the District Munsif, which runs thus
If the amount was found not to be due from defendant 1, the plaintiff will get a cause of action to sue defendant 2 for damages. This the plaintiff can do only in a separate suit making the necessary allegations.
5. I am wholly unable to see how this passage can be reconciled with the clear finding that there being no agreement to make defendant 2 liable, he must be exonerated. There is abundant authority for the position that no such statement as this in a judgment will create in the plaintiff any right to bring a fresh suit which he does not already enjoy. The code provides only one set of circumstances in which such a right arises, namely under the terms of Order 23, R.1, and as has been pointed out in Fateh Singh v. Jagannath Baksh Singh , it is a necessary part of the procedure that in respect of a portion of the claim the plaintiff should withdraw his suit or abandon part of his claim; and it is only then that permission can be granted to him to institute a fresh suit in respect of the subject-matter withdrawn or abandoned. No such circumstances arises in the present case, and I cannot find therefore that the plaintiff can derive from what the District Munsif said any defence against the ploa of res judicata which appears to me to be clearly established. I must accordingly differ from the view taken by the learned Subordinate Judge, sat aside his decree and restore that of the District Munsif with costs throughout.