Mitter and Macpherson, JJ.
1. The plaintiff in this case brought a suit against Jew Narain Mahto and others for an account in regard to his share in a certain ticca transaction; his allegation being that he was a partner with the defendants in that ticca. It appears that these defendants had brought against him a suit for rent, alleging that they were the sole ticcadars, and that he, the plaintiff in this case, that is Abdul Majid, as a tenant of a portion of the ticca property, was liable to pay rant.
2. In that suit Abdul Majid, the plaintiff in this suit, amongst other things, pleaded that no suit for rent would lie against him, as he was a partner in the ticca. It is thus clear that the issue whether the plaintiff in this suit, Abdul Majid, was a partner in the ticca with the defendants or not, was common in these two suits. Evidence was taken in these two suits bearing upon this issue, and it seems that by consent of the parties the evidence taken in one suit upon this issue was considered as evidence in the other. The Court of First Instance decided this issue against the appellant before us, that is to say, it came to the conclusion that he was not a partner in the ticca with the defendants. Against the decree for rent, which was passed against the appellant, he did not prefer any appeal, but against the decree which was made in the suit for an account, that is to say, against the order of the Munsif dismissing Abdul Majid's suit, there was an appeal preferred. On the appeal the first question that had to be decided by the Appellate Court was whether the appellant Abdul Majid was a partner with the defendants in the ticca transaction or not, and it was contended on behalf of the defendants before the Lower Appellate Court that that question was no longer open between the parties, and that it could not be decided in the Appellate Court on the evidence, because the matter was res judicata. That contention rested upon the ground that as the same question had been decided between the parties in the rent suit, and as against the decision in the rent suit no appeal was preferred, that decision, so far as this question of partnership is concerned, is final between the parties in the present suit for an account. The Subordinate Judge of Patna, Baboo Troylokya Nath Mitter, who heard that appeal, was of opinion that the contention of the respondents was right, and he dismissed the appeal, not on the ground that upon the evidence the plaintiffs' allegation of co-partnership was not made out, but on the ground that the matter as contended for by the pleader for the respondents was res judicata between the parties. On second appeal this question was raised, viz., whether the view taken by the Lower Appellate Court was correct or not, and the record was sent back to the Lower Appellate Court to decide this issue, viz., whether the appellant was a partner or not upon the evidence, reserving the question of res judicata on that occasion. If the decision of the Appellate Court upon the evidence had been in favour of the defendants, the question of law, viz., whether the decision in the rent suit upon the question of partnership was res judicata or not, would not have arisen; but on remand the Lower Appellate Court has found upon the evidence on the record, that the allegation of the appellant, that he was a partner in the ticca transaction with the defendants, was established. We have, therefore, now to decide the question of res judicata in this case.
3. We are of opinion that the Subordinate Judge, Babu Troylokya Nath Mitter, was not right in dismissing the appeal, and the appellant's suit upon the ground that it was barred by Section 13 of the Civil Procedure Code. Section 13 says that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they claim. Now the suit for an account was not brought on the same cause of action as the suit for rent. What was contended for was that the issue as to partnership could not be decided on the evidence by the Appellate Court because that issue had been decided against the appellant in the Munsif's Court in the rent suit, and no appeal had been preferred against the decision of the Munsif in that suit. Now Section 13 says that no Court shall try any issue which has been directly and substantially in issue in a former suit between the same parties. I omit the word 'suit,' because the question whether the present suit could be decided does not arise. Now in this case we know that that issue was tried by the Court of First Instance. There was no bar at the time under Section 13, because at; that time that issue had not been tried and decided, and therefore could be no bar under Section 13 when the trial was held in the Court of First Instance. That being so, and the first Court having decided the case on the evidence, we are of opinion that the Appellate Court was bound to decide the appeal also upon the evidence. That Court was not holding a trial of the issue, and therefore Section 13 could not apply. The Subordinate Judge was deciding the suit in appeal, the issue having been already tried in the Court of First Instance; and therefore the words of Section 13 do not warrant the decision of the first Appellate Court to the effect that in that Court the matter' was not open between the parties. Nor on general principles do we think that the view taken by the lower Appellate Court can be supported. The Court of First Instance tried the two suits together, and upon the evidence taken in both, the evidence taken in the one suit being considered as evidence taken in the other by consent of the parties, came to a certain conclusion. The appellant before us, who was plaintiff in one of the suits and defendant in the other, did not think it worth his while to appeal in one of these suits, but he did appeal against the conclusion at which the lower Court had arrived in the other suit, and we do not see any valid reason why the appellant should be deprived of his right to have the opinion of the Appellate Court on a question which had been considered and decided by the Court of First Instance. We are, therefore, of opinion that Section 13 was not a bar to the Appellate Court's deciding the point on the evidence, and as that Court has decided in favour of the appellant, that he was a partner in the ticca transaction, the case will now go back to the Munsif to dispose of it and try all the remaining issues arising in the case. The costs of this appeal will be costs in the cause, and will abide the final result.