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Akilandam Pillai Vs. Chinnasawmi Moopan - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in13Ind.Cas.649
AppellantAkilandam Pillai
RespondentChinnasawmi Moopan
Excerpt:
civil procedure code (act v of 1908), section 11 - resjudi-cata--suit on a loan--plea of discharge by plaintiff in a previous suit against him by defendant--bar--non-production of pleadings in previous suit to prove res judicata. - .....day of hearing of small cause suit no. 184 of 1910. the present action is for the return of the loan advanced to the defendant. the defendant pleaded that the plaintiff contested his claim in small cause suit no. 184 of 1910 and that a decree was passed in the defendant's favour and that the present claim was, therefore, res judicata. the district munsif upheld the defence. he observes: 'in small cause suit no. 184 of 1910 brought by the defendant against the plaintiff, plaintiff pleader that the amount now claimed should be deducted, but that suit was decreed against him, as he did not appear and prove his plea. the present claim is consequently barred by the rate as to res judicata.'2. it is not clear from the munsif's judgment whether he understood the plea of the present plaintiff.....
Judgment:

Sundara Aiyar, J.

1. The judgment of the lower Court cannot be upheld. The plaintiff alleges in his plaint that he advanced certain articles and money to the defendant, his tenant, the total value of the same being Rs. 34-7-0, and that the defendant had agreed to pay this amount out of his share of the waram for the land. He also alleges that, as a matter of fact, he received the amount of this loan less a sum of Rs. 9-11-0 out of the defendant's share of the waram. The plaintiff states that the defendant sued the plaintiff in Small Cause Suit No. 184 of 1910 for the full amount of the waram due to him and that the plaintiff set up a plea of discharge, but the plea was disallowed, as his witnesses did not attend on the day of hearing of Small Cause Suit No. 184 of 1910. The present action is for the return of the loan advanced to the defendant. The defendant pleaded that the plaintiff contested his claim in Small Cause Suit No. 184 of 1910 and that a decree was passed in the defendant's favour and that the present claim was, therefore, res judicata. The District Munsif upheld the defence. He observes: 'In Small Cause Suit No. 184 of 1910 brought by the defendant against the plaintiff, plaintiff pleader that the amount now claimed should be deducted, but that suit was decreed against him, as he did not appear and prove his plea. The present claim is consequently barred by the rate as to res judicata.'

2. It is not clear from the Munsif's judgment whether he understood the plea of the present plaintiff in the defendant's previous suit as one of discharge or set-off. If, as alleged by the plaintiff, it was one of discharge, then the disallowance of the plea would not be a bar to the plaintiff's suit to recover the loan advanced by him. The written statement of the present plaintiff in the previous suit has not been put in, nor even the judgment in that suit. I cannot but express my regret that the District Munsif should, have proceeded to decide the case on the plea of res judicata without causing the pleadings and the judgment is the previous suit to be put in. If the judgment in the previous suit decided, as a matter necessary for the disposal of that suit, that the plaintiff advanced no loan to the defendant, then, no doubt, the present suit would be barred. But it is impossible to hold, on the materials before me, that that question was decided. I set aside the decree of the District Munsif and remand the suit to him with the direction that it be restored to the file and disposed of according to law.

3. I do not dispose fully of the question of res judiata. It would be open to the defendant to prove it, producing the necessary documents.

4. Costs of this petition will abide the result.


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