1. This is a suit to recover the sum of Rs. 11,019-3-0 from the defendant as money lent and advanced. The plaintiff alleges that on certain days in the months of September and October 1930 he lent Rs. 10,000 in all to the defendants. Defendant 1 did not deny the loan, and his defence to the suit has already been disposed of, and a decree has been made against him in circumstances which I stated at the time. The defendant Abdul Sovan has appeared at the hearing and contested the suit on two grounds: (1) that he was not a party to the loan, which means that he was not in partnership with Abdul Razak, and that the suit is barred by res judicata by virtue of the judgment by Ameer Ali, J., when exercising the Insolvency Jurisdiction of the Court. I will deal with the last point first.
2. The matter in which my learned brother delivered his judgment just referred to was an application by six creditors to adjudicate the present defendants as insolvents. My learned brother held that there was no act of insolvency. Abdul Sovan on that occasion denied that he was a partner with Abdul Razak, and Ameer Ali, J., held that he was not a partner. Section 11, Civil P.C., provides that no Court shall try any suit or issue in which the matter in issue has been in issue in a former suit. It does not refer to a cause application, matter or other proceedings, but to a suit, and it is unquestionable that the proceedings before my learned brother in which he delivered his judgment were not a suit, and in my opinion this point is conclusive. I have however been referred on behalf of the defendant to two decisions of the Allahabad High Court in the earlier one of which, Pitaram v. Jujhar Singh AIR 1918 All 346, the learned Judges took a contrary view, but I find that in so doing they observed:
Though it is not necessary for the decision of this case to determine the point, we are further of opinion that an application heard and determined in the way this application was disposed of is in fact a suit.
3. The case cannot therefore be taken as an authority for the proposition in support of which it is cited, for it would appear that according to the learned Judges themselves the opinion expressed was obiter dictum. However in Irshad Husain v. Gopi Nath AIR 1919 All 229 when a similar point came before the same High Court, the learned Judges expressed great doubt on the point:
If we had to consider the matter in the absence of authority we doubt very much whether the order of the insolvency Court and the Court of appeal from that order can operate as res judicata.
4. After pointing out that there was no previous suit between the parties, they referred to Pitaram v. Jajhar Singh AIR 1918 All 346 which they said they were bound to follow or refer the appeal then before them to a larger Bench for reconsideration of the question involved; but having come to the conclusion that no injustice had been done they refrained from doing so. There is no authority for construing Section 11 in relation to a judgment delivered in insolvency proceedings otherwise than strictly, but reference has also been made to the general principles of res judicata on the ground that the Code is not exhaustive, but if that is so, it is contended that the question of partnership never arose and the judgment on this point was superfluous because until it was held that there had been an act of insolvency the question of partnership was immaterial. This differentiates the present case from Peary Mohun Mukerjee v. Ambika Churn (1900) 24 Cal 900, the only other authority cited for the defendant, in which an earlier suit was bound, to fail for want of notice required by the Bengal Municipal Act, but there had been a decision upon the merits. Nevertheless it was held that such earlier decision barred a subsequent suit upon the merits, and that the plea of res judicata must prevail. Where there are two or more issues, any one of which would dispose of the suit, it may well be that a decision on any one of them will be res judicata, but that is by no means the case here, and in my judgment this suit is not barred by the principles of res judicata.
5. I now turn to the facts and the only issue to be decided is whether or not Abdul Sovan was a partner with his father, Abdul Razak, in the business for which the money was borrowed. A considerable body of evidence has been adduced on behalf of the plaintiff, and I do not propose to examine it in very great detail for the reason that evidence must be closely scrutinized and compared where it is sought to prove that a particular fact happened on a particular day at a particular' place, but where it is sought by evidence to establish facts proving a continuous legal relation, the matter takes on a somewhat different aspect. (After discussing the evidence, the judgment concluded.) In my judgment the defendant was a partner at all material times with his father Abdul Razak, and must be held liable with him for the moneys claimed in this suit. There will be judgment against him for the amount claimed, costs and interest on judgment at 6 per cant. Reserved costs, if any.