Draksharam Chandramouli vs Gunda Satya Narayana and Another

Devadoss, J.—This is an application to revise the decree of the Subordinate Judge of Bezwada in Small Cause Suit No. 223 of 1923. The

petitioner brought a suit for Rs. 224-4-6 being the wages due for dyeing work done by him to the defendants. The defendants filed a S.C.S. No.

820 of 1922 in the Bezwada District Munsif''s Court against the plaintiff for damages on the ground that the plaintiff damaged the material when he

dyed it. In S.C.S. No. 820 of 1922 the plaintiff (defendants in S.C.S. No. 223 of 1923) got a decree for damages and when the Small Cause Suit

No. 223 of 1923 came on for hearing they raised the plea of res judicata. The Subordiuete Judge has upheld this plea and the plaintiff has filed this

Revision Petition. The question is whether a defendant is bound to raise as defence a counter-claim or a claim for set off against the plaintiff''s

claim.

The defendants'' S.C.S. No. 820 of 1922 was for damages on account of the material being spoiled by the plaintiff. The plaintiff''s claim in

S.C.S. No. 223 of 1923 is for the wages due for dyeing work done by him. The plaintiff herein could have put forward a counter-claim against the

defendants in their S.C.S. The point for decision is, was the plaintiff bound to do so and whether his not having done so would bar his suit on the

ground of res judicata. Explanation 4, to Section 11, Civil P.C. runs thus:

Any matter which might or ought to have been made ground of defence of attack in such former suit shall be deemed to have been a matter directly

and substantially in issue.

According to this explanation any matter which could have been made a ground of defence or attack, should relate to the claim in the former

suit.

The plaintiff herein could have pleaded in answer to the defendants'' suit that the material was not damaged or that the damage was much less

than that claimed by the plaintiff or that he paid some amount towards damages. The plaintiff''s claims could not be pleaded in answer to the suit by

the defendants but could be put forward only by way of set off or counterclaim and, therefore, it cannot be said that the present claim ought to

have been put forward in answer to the previous suit of the defendants. What is contended for the respondents is that both causes of action arose

out of the same transaction, that is to say the claim of the plaintiff is for the wages due to him by the defendants and the claim of the defendants in

S.C.S. No. 820 of 1922 was for damages for spoiling the material when dyeing and that, therefore, a second suit does not lie.

The plaintiff in this case could no doubt have put forward a counter-claim but his failure to do so would not bar the suit by him for the amount

which he claims. It was held recently by Mr. Justice Venkatasubba Rao in Govinda Rao v. Rudrayya AIR 1925 Mad. 830 that where the

plaintiff''s claim to damages was in the nature of an equitable set off it was not obligatory on him to plead it in the defence at all. I agres with the

learned Judge''s reasoning for the conclusion that a defendant who has a claim against the plaintiff is not bound to put it forward to the suit and his

not doing so would not bar a subsequent suit. The same view was upheld by a Bench of this Court in Pichi Aiyar and Another Vs. Subbarayar

alias Subramania Aiyar, There it was held that.

a defendant who has a claim for set off is not bound to put it forward in answer to the suit against him and his failure to do so cannot take away his

right subsequently.

The learned vakil for the respondents relies upon two cases in supporting his contention. The case in Kameswar Pershad v. Raj Kumari Rattan

Koer [1893] 20 Cal. 79 has no application to the present case. There the plaintiff brought a suit on a bond the amount of which was made a

charge upon an immovable property and he afterwards sued for personal liability against the mortgagor. It was held that the second suit was barred

by les judicata u/s 13 of the old Civil P.C. As observed by Lord Morris in that case

it was only an alternative way of seeking to impose a liability upon Run Bahadur and it appears to their Lordships that the matter ''ought'' to have

been made a ground of attsck in the former suit and therefore that it should be deemed to have been a matter directly and substantially in issue,'' in

the former suit and is res judicata.

The ease in Shib Chandra Talukdar and Others Vs. Lakhi Priya Guha and Others, is distinguishable on the facts. There the plaintiffs obtained an

ex parte decree against the defendants jointly., In a subsequent suit against the same defendants the defence was raised that there was a division of

the tenancy with the cansent and the knowledge of the landlord and that the the defendents Were not jointly but sever-ally liable for the rent. It was

held that such a defence could not be put forward in a subsequent suit as it should have been put forward in the previous suit.

I hold that where a person who could put forward a counter-claim or plead an equitable set off does not do so, his subsequent suit on such a

claim, or claim to set off would not be barred by reason of his not having put it forward in the suit against him.

The decision of the Subordinate Judge is set aside and the suit remanded to the lower Court for disposal on the merits.

The petitioner will be entitled to the-costs of this civil Revision Petition.