Decided on February 21,1968

DEVASSI Appellant
ANTHONI Respondents


- (1.) None of the conditions in sub-s.(1) of S.100 of the Code is here satisfied. Indeed, the dismissal of the appellant defendant's appeal to the court below can be supported on the short ground that that appeal did not lie. This is a case where the plaintiff withdrew his suit under sub-r.(1) of R.1 of O.23 he was competent to do that and required nobody's permission since he was the sole plaintiff, the defendant, as we shall presently see, being in no sense a plaintiff and the so called dismissal of the suit as withdrawn by the Trial Court was not really a dismissal but a mere recording of the fact of withdrawal. It determined none of the matters in controversy in the suit there was no claim by the defendant to be determined and is not a decree as defined by S.2(2) of the Code. It stands on the same footing as a dismissal under R.8 of O.9, which, because the word, "dismissal" implying a determination on the merits is used by the rule, is expressly excluded from the definition in S.2(2) by clause (b) of the exclusions therein. It is the provision in sub-r.(3) of R.1 of O.23 (Like that in R.9 of O.9) and not any principle of res judicata that precludes the plaintiff in such a case from bringing a fresh suit in respect of the same matter. It follows that there being no decree no appeal lay under S.96 of the Code. Reference may be made in this connection to Kulandai v. Indram Ramaswami AIR 1928 Mad. 416 at 418, Saraswati Bala v. Surabala Dassi AIR 1957 Calcutta 57 and Paisa Sultana v. Abdul Qadir AIR 1966 Allahabad 318 at 320.
(2.) The suit was for an account of a dissolved partnership. By his written statement the defendant denied the partnership alleged in the plaint, and denied that there was any accounting relationship between himself and the plaintiff. Nor was there any finding by the court that there was any such relationship. Hence, there is here no question of regarding the defendant and the plaintiff as occupying the position of both plaintiff and defendant on the principle underlying the decisions in Debi Chand v. Prabhulal AIR 1926 Allahabad 582, Arura Mal v. Makhan Mal AIR 1930 Lahore 725 and Devsey Khetsey v. Hirji Khairaj AIR 1942 Bombay 35 any more than a defendant in a suit for partition who has claimed sole and exclusive title to the property can be regarded as a plaintiff unless and until the court has found that the property is liable to partition. See in this connection Hasan Badsha v. Hazlah Begum AIR 1949 Mad. 772 and Hulas Rai v. K. B. Bass & Co. AIR 1963 Allahabad 368.
(3.) It is said that there was a previously instituted suit between the same parties in which the partnership averred by the plaintiff and denied by the defendant in the present suit has been found and that the defendant has suffered that finding to become final so that it will operate as res judicata in the present suit and rule out his defence that there was no such partnership. Further, that pending disposal of that earlier suit, the present suit had been stayed under S.10 of the Code. That might well be so, but, so long as the plea of res judicata was not taken in the present suit and a finding obtained that the parties stood in an accounting relationship it was not for the court to take such a plea and give such a finding of its own accord and so long as the written statement of the defendant stood as it was and denied the partnership and was not amended so as to admit the partnership and ask for an account, there was no change in the scope and nature of the suit and no question of treating the defendant as occupying the role of a plaintiff as well, or, vice versa, so as to permit of the transposition which the defendant sought or so as to preclude the plaintiff from withdrawing the suit at his own sweet will and pleasure. So long as the defendant's plea was that there was no partnership and so long as there was no finding that there was a partnership, how could the defendant be transposed to prosecute a suit which, on his own plea, had to be dismissed A stay of a suit under S.10 of the Code does not amount to a consolidation of that suit with the previously instituted suit which might, after all, be pending in another court, so as to make the decree therein a decree in the stayed suit. It is for the parties to take the plea of res judicata after the disposal of the earlier suit has resulted in the stay being dissolved and obtain an adjudication thereon. Jai Kishan v. Bajaranglal ILR 1961 (11) Rajasthan 1173, relied upon by the appellant, itself recognises this distinction between a stay and an actual consolidation.;

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