M.M. Ismail, J.
1. Defendants 4 to 9 wore partners carrying on business as Messrs. Ramakrishna Metal and Alloy Industries, the 2nd defendant. The fourth defendant was also the sole proprietor of the third defendant, namely, Messrs. General Pump Factory. It is the common case of both sides that subsequent to the events which have taken place constituting the cause of action of the plaintiff, the businesses of the second and third defendants were taken over by the first defendant.
2. Before dealing with the contentions raised in the present appeal, it is necessary to set out certain facts as providing the background for instituting the suit which gave rise to the second appeal. The managing director of the first defendant filed O.S. No. 1243 of 1959 for recovery of a sum of Rs. 2,302-99 from the plaintiff in the suit. The plaintiff also filed O.S. No. 1419 of 1959 against all the defendants in the present suit for production of their accounts of sale etc,, for the period from 1st February, 1957, for appointment of a Commissioner to examine the accounts and for arriving at the amount due to the plaintiff, including damages and for ordering the defendants in that suit to pay the amounts so found due by the Commissioner. Since we are concerned only with the latter suit, namely, O.S. No. 1419 of 1959, a reference; to the facts in that case is necessary and relevant. The case of the plaintiff in that suit was that he was the sole convassing agent of defendants 2 and 3 for the sale of pumps manufactured by them and he was so appointed by a letter dated 1st February, 1957, under which he was entitled to a commission of 5 per cent. in respect of the sales effected by or through him and an overriding commission of 2 1|2 per cent. on all the sales effected by defendants 2 and 3 over certain areas specified in that letter. The defendants resisting the claim inter alia contended that the letter dated 1st February, 1957 was a forgery. In that suit, the trial Court framed several issues and three of them are necessary they being Issues 3, 4 and 5 and they are as follows:
Issue 3 : Whether the letter dated 1st February, 1957 is a forgery?
Issue 4 : Whether the plaintiffs are entitled to any commission; and
Issue 5 : Whether the plaintiffs are entitled to demand accounting?
3. The trial Court on Issues 3 and 4 found in favour of the plaintiff. It came to the conclusion that the plaintiff was acting as a commission agent of the two defendants upto the end of 1958 and was entitled to a commission of 5 per cent. on the sales and an annual overriding commission of 2 1|2 per cent. However, with regard to Issue No. 5 referred to above, the trial Court was of the opinion that the plaintiff, even according to his own case being only an agent of the defendants, had no right to demand an accounting from the defendants. Consequently, Issue No. 5 mentioned above, was decided against the plaintiff. In view of this finding the trial Court observed that the plaintiff Was not entitled to maintain the suit, for accounts. With this observation, the trial Court dismissed the suit, but pointed out that the plaintiff was at liberty to file a fresh suit' claiming the commission due to him on the same cause of action. ' It is this judgment which becomes final has given rise to the present suit. ' I must point out that the common case of both the parties is that the dispute involved in the suit relates to only the overriding commission of 2 1|2 per cent. and not to the 5 per cent. on the sales effected by or through the plaintiff. Since the defendants concede that the plaintiff was their salesman and was entitled to the commission of 5 per cent., the present suit, namely, O.S. No. 1301 of 1960 was filed by the plaintiff for recovery of a sum of Rs 3,650-17 representing the 2 1|2 per cent. overriding commission in respect of certain sales effected in the area covered by Exhibit A-l. The case of the plaintiff in his plaint was that he was the sole canvassing agent to the products of defendants 2 and 3 for six districts as per the appointment order dated 1st February, 1957. The claim of the plaintiff was resisted on several grounds, one of the grounds being that the letter dated 1st February, 1957, was a forgery and the fifth defendant who signed that letter was colluding with the plaintiff. The trial Court framed nine issues, Issue 2 being whether the suit is barred by res judicata and Issue 6 being whether the appointment letter dated 1st February, 1957, is a forgery. The trial Court by judgment and decree dated 24th November, 1961, decided these issues in favour of the plaintiff. The trial Court came to the conclusion that the suit was not barred by res judicata on the ground that the earlier suit was for rendition of accounts while the present suit was for recovery of money on accounts. With reference to Issue No. 6, the trial Court came to the conclusion that Exhibit A-l, namely, the letter dated 1st February, 1957, was not a forgery but a true and genuine letter binding not only on the second defendant-firm but also on the third defendant-firm by their conduct and payment of commission etc., and that they had appointed the plaintiff as their sole canvassing agent with effect from 1st February, 1957, for a 'period of three years.
4. On appeal, preferred by the defendants, the learned Subordinate Judge of Coimbatore reversed the judgment and decree of the trial Court and dismissed the suit of the plaintiff . As far as the contention regarding res judicata was concerned, the Court came to the conclusion that the suit of the plaintiff was barred by res judicata in view of the decision in O.S. No. 1419 of 1959. With regard to Exhibit A-1 the learned Judge came to the conclusion that that was a forged document in the sense that on 1st February, 1957, it was not in existence and that it was brought about subsequently in collusion between the fifth defendant and the plaintiff and that it was not binding on the defendant. The plaintiff has filed the present Second Appeal against this judgment and decree of the learned Subordinate Judge.
5. Mr. Champakesa Ayyangar, the learned Counsel for the appellant, raised the following contentions in support of his appeal.
(1) In the earlier proceedings, namely, in O.S. No. 1419 of 1959, the Court has given a finding that the letter dated 1st February, 1957 was a genuine letter issued by the defendants and the same was binding on the defendants and consequently that finding is binding on all the parties in the present suit and the question was not open to be re-agitated;
(2) Even assuming that it was open to the Court in the present suit to go into the question, the finding of the learned Subordinate Judge, that the document Was a forged one in the sense that on 1st February, 1957 it was not in existence and that it was brought about subsequently in collusion between the fifth defendant and the plaintiff, is not supported by any evidence.
(3) The conclusion of the learned Subordinate Judge that the present suit is barred by res judicata in view of the decision in O.S. No. 1419 of 1959 is not tenable in law, since the cause of action and the relief prayed for in both the suits were not the same. Mr. Mohan Kumaramangalam, learned Counsel for the respondents, disputed these contentions of Mr. Champakesa Ayyangar.
6. As far as the first contention of Mr. Champakesa Ayyangar that it is not open to the Courts below in this suit to go into the question of genuineness of Exhibit A-l, since there Was a finding that the same was genuine and binding in O.S. No. 1419 of 1959 is concerned : I reject that contention for two reasons. The first reason is this : admittedly this question relating to the finding in respect of Exhibit A-l being res judicata binding on all the parties was not raised either in the pleadings or argued before the Courts and it was sought to be raised only in the second appeal before me. The contention of Mr. Champakesa Ayyangar is that all the facts necessary for raising that plea are to be found in the materials placed before the Courts and consequently, on the basis of those materials, he is entitled to raise that plea in the second appeal before this Court. I am of opinion that this contention is not tenable. In the first place a plea of res judicata does not involve a pure question of fact and it involves a mixed question of fact and law and consequently the factual foundation necessary for raising the plea of law must have been laid in the pleadings and in the issues. Mr. Champakesa Ayyangar relied upon the judgment of the Supreme Court reported in Teswant v. Walchand : 1SCR852 , and relied upon a passage in relation to the applicability of Section 18 of the Limitation Act to the effect that:
if the facts proved and found as established are sufficient to make out a case of fraud within the meaning of Section 18, this objection may not be serious as the question of applicability of the section will be only a question of law and such a question could be raised at any stage of the case and also in the final Court of Appeal.
7. In my opinion, this decision is not of such assistance to the learned Counsel for the appellant. The very passage relied upon by the learned Counsel assumes that all the facts necessary for raising the applicability of Section 18 were placed before the Court and were proved and found established. But as far as the plea of res judicata is concerned, that plea has to be established only by making the necessary averments and producing evidence in support thereof and therefore this judgment does not advance the contention of the learned Counsel. On the other hand, Mr. Mohan Kumaramangalam relied upon the decision of the Privy Council in Jagadish Chandra Deo v. Gour Hari Mahatae . The following passage occurring in the judgment is enough for the purpose of bringing out the point involved:
Two questions are involved, the first being the question of res judicata. The High Court declined to allow the appellant to go into the question of res judicata on the ground that it had not been properly raised by the pleadings or in the issues, particularly in the issues. It seems to their lordships that the High Court was right in this view, because it was necessary for the appellant, if he were going to make use of the judgment in the suit of 1900 as res judicata to identify the subjects in dispute in the present case with the subjects which in that case were held to belong to the Rajah and not to the tenants.
8. This decision, in my view, fully supports the case of the respondents and is against the appellant. As a matter of fact, it is significant that the defendants have raised the question of res judicata with regard to the maintainability of the suit itself on the basis of the decision in the earlier suit. The plaintiff had ample opportunity to put forward any such plea of res judicata in relation to the genuineness of Exhibit A-l, and they did not do so. Under these circumstances, I am of the view that they cannot be permitted to raise the question for the first time in this second appeal.
9. The second reason for rejecting the contention of Mr. Champakesa Ayyangar with regard to the plea of res judicata in respect of the finding on Exhibit A-l is that the finding in O.S. No. 1419 of 1959 that the document was genuine was a finding on an issue which was not necessary for the disposal of that suit. For the applicability of Section 11 of the Code of Civil Procedure and for invoking the bar of res judicata it must be established that the matter which is directly and substantially in issue in the present suit has been directly and substantially in issue in the former suit. As I pointed out already, notwithstanding the finding on the genuineness of Exhibit A-l, which was a finding in favour of the plaintiff, the suit of the plaintiff was dismissed solely on the ground that the plaintiff was not entitled to call upon the defendants to render accounts. The very fact that the suit of the plaintiff was dismissed notwithstanding that finding in favour of the plaintiff is sufficient to show that such a finding was not necessary for the disposal of that suit. In this connection, Mr. Mohan Kumaramangalam, the learned Counsel for the respondents, invited my attention to a decision of this Court reported in Srinivam Row v. Kaliaperumal (1966) 79 L.W. 180, where it was held that for a finding in an earlier suit to operate as res judicata in a subsequent suit, it must have been necessary for the disposal of the earlier litigation, and, in that sense, the point was substantially in issue between the parties and must have been heard and finally decided. The learned Counsel also relied upon the decision reported in Kumarappa v. Raghunatha : AIR1932Mad207 , and relied upon the following passage occurring in the judgment:
If the decree is wholly in favour of the defendant, no issue decided against him can operates as res judicata so as to bind him in a subsequent suit, for, he cannot appeal from a finding on any such issue. Conversely, if the plaintiff's suit is decreed in its entirety, no issue decided against him can be res judicata for he cannot appeal from a finding on any such issue, the decree being wholly in his favour.
10. The decree in the earlier suit was wholly in favour of the defendants and therefore the finding giver in regard to Exhibit A-l in the earlier suit cannot operate as res judicata so as to prevent the defendants putting forward the contention that Exhibit A-l is not a genuine document, in the present suit.
11. Hence, the second contention of Mr. Champakesa Ayyangar has to be considered as to whether there is any evidence to support the finding of the lower appellate Court that Exhibit A-l was not in existence on 1st February, 1957 and it was brought about subsequently in collusion between the fifth defendant and the plaintiff. There is ample evidence which has been discussed by both the Courts to support the finding that Exhibit A-l would not have been in existence on 1st February, 1957. The evidence has been referred by both the Courts and the only difference is that the trial Court after discussing the evidence came to the conclusion that the document was a genuine one, while the lower appellate Court came to a contrary conclusion. Learned Counsel for the appellant had taken me through the judgments of both the Courts and the evidence adduced by the parties with reference to this point. In my view, it cannot be said that the finding of the lower appellate Court that the document Exhibit A-l was not in existence on 1st February, 1957 is not supported by any evidence. Mr. Champakesa Ayyangar further contended that when it was admitted that the fifth defendant, who was the managing partner of the second defendant, had signed the document, it must follow that it was binding on all the partners and there is no evidence to support the finding that the fifth defendant had executed the document in collusion with the plaintiff. Here again it is not possible for me to accept the contention of the learned Counsel. The sixth defendant who had been examined as D. W. 1 had stated that from the end of December, 1956 there has been ill-feeling between the other partners and the fifth defendant and the ill-feeling was due to avarice and greed in the business and had further stated that Exhibit A-l was brought into existence with the aid of the fifth defendant. If the lower appellate Court had drawn the inference from this evidence that Exhibit A-l was brought into existence in collusion between the fifth defendant and the plaintiff, it cannot be contended that there was no evidence to support this finding, particularly in view of the other finding that the document Exhibit A-l bearing date 1st February, 1957 was not in existence on that date. Since the claim of the plaintiff in the suit relates to recovery of 2 12 per cent. overriding commission and the basis of that claim is only Exhibit A-l on the finding that Exhibit A-l was brought into existence by collusion between the plaintiff and the fifth defendant and therefore was not binding on the partnership as such, it must follow that the claim of the plaintiff for recovery of this sum claimed by him must necessarily fail. I must also point out one other factor, namely, that, in so far as the plaintiff had rested his claim for the recovery of the money solely on the basis of Exhibit A-l no claim against the third defendant can be substantiated on the strength of Exhibit A-l since admittedly, the third defendant came into existence only subsequent to 1st February, 1957 and consequently by no stretch of imagination it can be contended that the fifth defendant, when he was alleged to have executed the document on 1st February, .1957 did so on behalf of both the second defendant and the third defendant.
12. Since I uphold the finding of the lower appellate Court with regard to Exhibit A-l not being a genuine document, in the sense that it was not in existence on 1st February, 1957 and was executed by the fifth defendant in collusion with the plaintiff, and, on that basis the appeal has to be dismissed, it is unnecessary for me to express any opinion on the third contention as to whether the suit by the present plaintiff was barred by the principle of res judicata or not, because of the decision in the earlier suit O.S. No. 1419 of 1959.
13. Under these circumstances, this second appeal fails and the same is hereby dismissed. The parties will bear their respective costs throughout. No leave.