Poyyali Naicker vs Subba Naicker

The suit is brought by the Karaswan against the defendant whom he alleges to be a subscriber to the chit. The defendant denied he was a

subscriber. The District Munsif earns to the conclusion that the defendant''s plea is barred byres judicata by virtue of the decision in Small Cause

Suit No. 1400 of 1915 on the file of the District Munsif''s Court, Tuticorin. In that suit, a third party who claimed to be a subscriber to the chit fund

brought a suit against the present plaintiff and the defendant, who were arrayed as 1st and 2nd defendants respectively, for recovering the amount

of the subscription which he had paid. The 1st defendant pleaded that he had asked the 2nd defendant who was also a subscriber to pay the

amount and consequently, he was not liable. The 2nd defendant pleaded that he was not a subscriber at all and that he never undertook to pay the

plaintiff. After the pleas were recorded, the plaintiff in the previous suit exonerated the -1st defendant and was content to take a decree against the

2nd defendant alone. The District Munsif states in his judgment in that case: ''I find that no reason has been shown why the plaintiff should institute

a false suit against the 2nd defendant. If the 2nd defendant and 1st defendant were on bad terms, there is no reason whatsoever why plaintiff

should lend himself to the designs of the'' 1st defendant."" The judgment does not decide any rights inter se between the 1st and 2nd defendants.

There is nothing in the pleadings to which I have been referred which in terms say that the liability undertaken by the 2nd defendant was as a

subscriber. It may be a case of novatio. The plaintiff to whom money was due from the 1st defendant might have agreed to take it from the 2nd

defendant and to give up his claim against the 1st defendant. The records of the suit are not inconsistent with the view that the 1st defendant was

exonerated because there was a new agreement with the 2nd defendant, who undertook the liability which the 1st defendant was under. The

conclusion in the previous suit does not necessarily entail the finding that the 2nd defendant was a subscriber. Therefore, in my opinion, the present

plea is not barred by res judicata on the face of the pleadings and of the judgment in the former suit.

I do not agree with the contention of the petitioner''s Vakil that there must be an actual adjudication. If the decision come to impliedly decides

the point which is now in issue, it would be res judicata, That was recognised even in Bombay. See Fakirchand Lallubhai v. Naginchand Kalidas

33 Ind. Cas. 423. In this Court a Bench, to which I was a party, has held that all findings which are necessary for giving the ultimate decision will

be res judicata. Sankaramaha-lingam Chetty v. Muthulakshmi 43 Ind. Cas. 860 But the real difficulty as regards the judgment of the District

Munsif arises from the facts that not only was the claim against the 1st defendant withdrawn but that there was no adjudication regarding the right

of the 1st and 2nd defendants inter se. In Ramchandra Narayan v. Narayan Mahadev 11 B. 216. West, J., stated the law thus: ""But for this effect

to arise, there must be a conflict of interest amongst the defendants and a judgment defining the real rights and obligations of the defendants inter

se"" Following the decision, the Madras High Court in Narasimha Ammal v. Srinivasa Ragava 5 Ind. Cas. 760 : 7 M.L.T. 89 say: ""The necesssity

for an active controversy between the co-defendants is uniformly recognised."" Applying the principle enunciated by these two decisions, it seems

to me that the conclusion come to in the previous case cannot be regarded as res judicata because there has been no adjudication regarding the

rights of the defendants inter se. The learned Vakil for the respondents drew my attention to the decision in Kandiyil Cheriya Chandu v. Zamorin of

Calicut 29 M.k 515. In that case the learned Judges specifically put the plea of res judicata on the ground of active contest. This is what Benson

and Bhashyam Aiyangar, JJ., say in that case: ""The then 6th defendant not only supported the then plaintiff but took an active part in the

controversy and was represented by a Vakil in all stages of the suit, both in the Courts below and in the High Court."" They farther say that an

adjudication is absolutely necessary to decide the rights of the two defendants inter se. That case does not help the respondent. The decision in

Nallappa v. Vridhachala 25 Ind. Cas. 888. proceeds upon the principle of equitable estoppel, which has no bearing on the present case.

For these reasons I am of opinion that the previous decision does not operate as res judicata in the present case and that there must be an

enquiry into the facts of the case. I reverse the decision of the District Munsif and remand the suit to him for disposal on the merits. Costs to abide

the result.