Arunachalam Chetti vs Meyyappa Chetty

Subramania Aiyar, J.—Murugappa Chetti, the deceased father of the present 1st defendant (1st respondent""), sued the plaintiff (appellant)

in O. S. No. 42 of 1879 for a sum of money alleged to be due by the father of the plaintiff the late Kamasami Chetti. The plaintiff, being then a

minor, was represented in the suit by his mother and guardian ad litem. At first she contested the suit, but during the trial she entered into a

compromise consenting to the sum claimed being decreed against the estate of the plaintiff, the father of the 1st defendent giving up his costs. A

decree was given in accordance with the compromise. In 1882, litigation again arose between the plaintiff and the 1st defendant''s father. One

Palaniappa Chetti, as the next friend of the present plaintiff, instituted O. S. No. 48 of 1882 against the 1st defendant''s father for the purpose of

setting aside the decree in the previous suit No. 42 of 1879, on the ground that it had been obtained by fraud practiced on the plaintiff''s guardian

ad litem. In the course of the suit, Palaniappa Chetti was removed from the position of next friend and the present 3rd defendant was appointed in

his stead. The 3rd defendant carried on the litigation with the result that the suit was dismissed, it being found that no fraud was made out. Another

attempt to get rid of the decree in suit No. 42 of 1879 was made in 1884, by an application purporting to be made in that case itself. In the

application, the point taken was that the compromise was entered into without the sanction of the court as required by Section 462 of the Civil

Procedure Code; but the Subordinate Judge, who heard the application, rejected it holding that, in effect, though not expressly, sanction has been

given. An appeal was preferred to the High Court against the order rejecting the application. The appeal was, however, dismissed for the reason

that against such an order no appeal lay. The plaintiff having since come of age, has instituted the present suit praying that the decree in suit No. 42

of 1879 be set aside and the sums, collected in execution of the decree, be made good to him by the 1st defendant. In the lower Court the plaintiff

relied in support of his case, both on the fraud by which his mother was said to have been induced to enter into the compromise and on the want of

sanction. He further alleged that suit No. 48 of 1882 was a mere sham proceeding carried on in collusion between the plaintiff''s next friends on the

one hand and the 1st defendant''s father on the other and that, therefore, the adjudication therein was not binding upon the plaintiff. On all the main

questions raised, the lower Court found against the plaintiff and dismissed the suit.

Here on appeal the learned Advocate-General, on behalf of the plaintiff, did not press the ground taken against the finding of the lower Court

that the fraud alleged with reference to the decree in suit No. 42 of 1879 was not established. He contended, however, that the lower Court was

wrong in holding that the compromise had been sanctioned and urged that the decree in suit No. 42 of 1879 should be vacated on the ground of

want of sanction.

We agree with the Advocate-General that no sanction was given for the compromise as alleged for the 1st defendant.'' There is absolutely

nothing to show that any application for sanction was made to the Court. The little evidence that has been adduced upon the point clearly indicates

that the decree was passed, upon the compromise without the Court considering or determining the question whether sanction should be accorded

or refused. It is scarcely necessary to add that the mere passing of the decree on the compromise does not amount to sanction being given within

the meaning of the law. And in the circumstances of this case, it would be wrong for the Court to presume on the ground of lapse of time that

sanction was given. The plaintiff would, therefore, be entitled to the principal relief claimed if he is not, as was urged for. the respondent, precluded

from relying on the absence of sanction either by the order of 1884 already referred to, or by the decision in O. S. No. 48 of 1882. That the

order, of 1884 does not operate as a bar is quite clear. The question whether sanction was given or not, being one going to the very root of the

decree passed on the compromise was such as could not be raised in execution of the decree. The order was, therefore, one which did not come

u/s 244 of the Civil Procedure Code. No doubt if an application for review of the decree passed on the compromise, had been made to the Judge,

who passed the decree, he could have entertained the application and set aside the decree for the reason that the requisite sanction had not -been

given. But the application, on which the order of 1884, was passed, was made to the successor of the Judge who passed the decree. The

successor had, u/s 624 of the Civil Procedure Code, no power to entertain an application for review on the ground of absence of sanction. The

order thereon was, therefore, manifestly ultra vires and could not affect the plaintiff.

The next and the real question in the case is whether the plaintiff is precluded from relying, upon the want of sanction by the decision in O. S.

No. 48 of 1882. In arguing that the plaintiff was not so precluded, the Advocate-General questioned the lower Court''s finding that the last

mentioned suit was not a sham and collusive proceeding. We are, however, unable to accede to the contention. The sole evidence on the point is

that of the 3rd defendant. The story that, without any intelligible reason for the vile conduct which the 3rd defendant imputes to himself, he joined

the first defendant''s father and others to defraud the plaintiff, the infant son of the 3rd defendant''s late master and kinsman, is so improbable that

we cannot but reject it. The lower Court was, therefore, in our opinion, right in discrediting the 3rd defendant''s testimony and coming to a

conclusion on the point against the plaintiff.

What then is the effect of the decision in that suit (48 of 1882), upon the plaintiff''s right to impeach the decree in suit No. 42 of 1879? Is it a bar

to the plaintiff''s present suit ? In urging that it was not, the Advocate-General contended that the right to avoid the compromise on the ground of

want of sanction was exercisable only by the plaintiff on his ceasing to be a minor, but not by any next friend on his behalf. There is, however,

absolutely nothing in the language of Section 462 of the CPC to warrant the view that the right to impeach a compromise entered into contrary to

its provisions is of the peculiar character contended for. Nor was any authority cited to support the contention. And in reply to the argument that, if

persons, interested in a minor, were not allowed to. question a compromise entered into on his behalf without the requisite sanction, minors would

in general be very seriously prejudiced, all that the Advocate-General could and did say was that it is perhaps open to courts to treat such a matter

as one involving an election on the part of the minor concerned and to determine whether in the interest of the minor the compromise shall or shall

not be repudiated. It is scarcely necessary to observe that no statutory provision giving to courts authority to exercise such special and

extraordinary power exists, and, in the absence of such provision no tribunal in the country can take action of the kind suggested. The Advocate-

General next contended that, even supposing the right to impeach the compromise for want of sanction may be exercised by a next friend, such

want of sanction was not a matter which might and ought to have been made a ground of attack under explanation ii of Section 13, Civil Procedure

Code. His arguments on this point may be shortly stated thus: On the analogy of the, decision of the Judicial Committee in Pittapur Raja v. Surya

Rao, I. L. R., 8 M., 520 relating to the construction of Section 7 of the CPC of 1859, corresponding to Section 43 of the present Code, a plaintiff

is not required u/s 13 of the latter Code to combine all the causes of action available at the date of the suit and which would entitle him to the relief

therein claimed. What Section 13 obliges a plaintiff to do is to rely upon all the grounds necessarily connected with the particular cause of action on

which the plaintiff chooses to sue. In determining what such grounds are, courts should have regard to such cases as Cooke v. Gill L. R., 8 C. P.

107 and Read v. Brown 22 Q. B. D., 128 explaining what constitutes a cause of action. According to them the want of sanction now relied on did

not form a constituent part of the cause of action alleged in suit No. 48 of 1882, which was founded on fraud alone. The evidence required to

sustain such a suit is not the same as that required to support a suit wherein the ground of attack is entirely different, viz., want of sanction. The

compromise, though in fact a single act, yet in point of law it amounted to a violation of two distinct rights vested in the plaintiff, and on the authority

of Brunsden v. Hum-phrey 14 Q. B. D., 141the plaintiff must be held not precluded by an adjudication in the suit, instituted with reference to the

violation of one of those rights, from maintaining a subsequent suit in regard to the violation of the other right. Lastly, if a want of sanction was a

matter which might and ought to have been made a ground of attack in the suit of 1882, still, as it was not adjudicated upon, it could not be held on

the authority of Kailash Mondul v. Baroda Sundari Dassi, I. L. R. 24 C., 711 to operate as res judicata.

The argument on the other side was briefly as follows: Such cases as Cooke v. Gill and Read v. Brown deal with what a cause of action is with

special reference to such questions connected with venue. The definition of a cause of action adopted with reference to such questions is not a

proper guide in dealing with matters bearing on res judicata. Nor are the cases decided under S. 7 of Act VIII of 1859, or Section 43 of the

present Code pertinent in cases like the present. Even u/s 2, Act VIII of 1859, which expressly used the term "" cause of action "", their Lordships

of the Judicial Committee put upon that term a wide interpretation in Woomatara. Debia v. Unnopoorna Dassee, 11 B. L. R., 158 where they held

that the plaintiff who failed to obtain judgment for the possession of land claimed by her in her first suit as taufir or accretion could not bring a fresh

suit claiming the same land as property belonging to her taluk according to the true boundary line. Their Lordships in their judgment referred to the

rule that when a man claims an estate and the defendant being in possession resists that claim, he is bound to resist upon all the grounds that it is

possible for him according to his knowledge then to bring forward (H M. I. A. at p. 72) as one fully applicable to plaintiffs also--a proposition

which is adopted in explanation ii, Section 13. Finally supposing the narrow view contended for by the Advocate-General were correct, still the

cause of action alleged in O. S. No. 48 of 1882 was precisely the same as that now relied on and that the fraud on which suit No. 48 of 1882

rested and the want of sanction on which stress is now laid were nothing more than different ways of supporting but one alleged infringement of the

plaintiff''s right.

In support of the arguments urged on both the sides, decided cases other than those referred to in the above summary were also cited. It may

be conceded that the language employed by the Courts is not always uniform. The diversity which exists is probably due, speaking generally, to the

difference in the standpoints from one or other of which the question is dealt with. These are well explained in Anpurna Bai''s case (I. L. R., 11 B.,

There, West, J., observes: ""Under systems such as the Roman Law or the English Common-Law, in which the development of legal rights

and duties has been greatly influenced by the re-action of a highly artificial mode of procedure, appropriate forms of action can be found for nearly

all the ordinary cases which the legal consciousness of the community recognizes as justifying an exercise of the coercive power of the State; but as

the variety of human relations greatly exceeds that of the conceptions, upon which a system of actions can be framed, it happens that the same

transaction or group of circumstances may furnish a ground of several different actions. In such cases different causes of action arise to the party

injured; but as it is felt that the same set of facts, which the mind at once grasps as jurally integral, ought not to be made a basis of repeated

proceedings, the complaining party is allowed to-frame his complaint in various ways and the rule obtains that all the circumstances which exist

when the former of the two actions is brought and can be brought forward in support of it, shall be brought forward then, not reserved for a

second action arising out of the same events. The cause of action is regarded as identical, though the form of action differs on the second occasion,

and the test applied is whether the evidence to support both actions is substantially the same--Eitchin v. Campbell, 2 W. Bl. 831 ; Martin v.

Kennedy, 2 Bos & Pul 69. Under a freer system of procedure, such as that of the Equity Courts in England or of the Civil Courts in India, second

suits are to be admitted more sparingly than when the plaintiff has to proceed by set forms of action. As he can bring forward his whole case

unfettered by artificial restraints and seek all remedies that the court can justly award upon the facts proved, there is no reason why he should be

permitted to harass his opponent and occupy the time of the courts by repeated investigations of a set of facts which ought all to have been

submitted for adjudication at once. His cause of action, into whatever Protean forms it may be moulded by the ingenuity of pleaders, is to be

regarded as, the same, if it rests on facts which are integrally connected with those upon which a right and infringement of the right have already

been once asserted as a ground for the Courts'' interference"" (Ib. 165). The wider view expressed in the latter part of the above quotation is

evidently the view which the Judicial Committee had laid down in Woomatara Debia v. Unnopoorna Dassee cited for the 1st defendant and this is

strengthened by the observation made by the same tribunal in Kameswar Pershad v. Rnjkumari Rattan Koer, that the state of the law at the time

Section 18 of the present Code was enacted, was that persons should not be harassed by continuous litigation about the same subject matter (I. L.

E., 20 C. at p. 86). There can be no doubt that explanation ii to Section. 13 was put in to emphasize this wider view, and this is rendered as clear

as, it can possibly be by another Section of the Code which like explanation ii found a place for the first time in the Code of 1877, in which the

provisions as to res judicata were amplified practically as they are now. That Section is Section 42 which provides that every suit shall as far as

practicable, be so framed as to afford ground for a final decision upon the subjects in dispute and so to prevent further litigation concerning them.

In short, the omission by the Legislature of the term ""cause of action"" upon which the point turned in Section 2 of Acticle VIII of 1859 from the

corresponding Section of the present Act, the insertion therein of a more definite term, viz., ""matter directly and substantially in issue,"" the

introduction of the comprehensive words ""subjects in dispute"" in Section 42 and the fact that explanation ii to Section 13 puts the duty of the

plaintiff with reference to the question under consideration on the same footing as that of the defendant, extensive as that had been, as laid down in

the Sivaganga case 11 M. I. A., 72 all these are strong indications to shew that the intention was to enlarge the scope of estoppel by record

beyond the limits that would be admissible if the term "" cause of action "" were construed in its literal and most estricted sense which, in Krishna

Behuri Roy v. Brojeswari, the Judicial Committee said should not be done L. R., 2 I. A., 283 . In this state of the law, what matters might and

ought to have been brought forward will depend upon the particular facts of each case. One test, as suggested by the Judicial Committee, is

whether the matters are so dissimilar that their union might lead to confusion, I. L. R. 20 C. 85. In the present instance it is quite clear that such

confusion could have arisen had the want of sanction been brought forward along with fraud in the previous suit, nor has any other valid objection

been suggested against the two grounds being then combined. It would follow, therefore, that the want of sanction in question might and ought to

have been made a ground of attack in O. S. No. 48 of 1882, and should be taken to have been in issue in that suit as laid down in explanation ii to

Section 13.

As regards the last argument of the Advocate-General, it would be quite permissible to reply that explanation ii in authorizing a fiction that the

matter contemplated was in issue necessarily implies the further fiction that it was also adjudicated upon. But it is more satisfactory to say that the

estoppel in question is different from that raised by an actual decision. In truth, the estoppel is that what might and ought to have been relied on in a

former suit as a ground of attack or defence but was not, could not in subsequent litigations between the parties be brought forward for such

purposes; and it is scarcely necessary to add that, notwithstanding the objections taken in some of the cases to the soundness of this doctrine, there

is no doubt that it is founded on unquestionable grounds of expediency and public policy.

Before concluding, it is also well to point out that, assuming that the limited construction proposed by the Advocate-General wore the correct

one, even then the cause of action on which the suit of 1882 was based, must clearly be held to be identical with that in the present suit. For

looking to the substance of the two actions, the dispute then was and now is as to the validity of the compromise embodied in the decree in suit

No. 42 of 1879. No doubt the invalidity was sought to be established in the suit of 1882 on one ground while in this suit it is sought to be

established on another ground. But these grounds are only different means invoked for making out what is manifestly a single and indivisible

infringement of the self-same right.

In either view, therefore, the conclusion must be that the plaintiff is debarred from relying on the want of sanction in question.

It is, therefore, not necessary to discuss the question of limitation. But if it were, we should decide that the suit was instituted within three years

from the time the plaintiff attained his majority.

The appeal fails and is dismissed with costs.

Davies, J.

I concur throughout.