M.M. Ismail, J. - (1.) DEFENDANTS 4 to 9 wore partners carrying on business as Messrs. Ramakrishna Metal and Alloy Industries, the 2nd defendant. The fourth defendant was also the sole proprietor of the third defendant, namely, Messrs. General Pump Factory. It is the common case of both sides that subsequent to the events which have taken place constituting the cause of action of the plaintiff, the businesses of the second and third defendants were taken over by the first defendant.
(2.) BEFORE dealing with the contentions raised in the present appeal, it is necessary to set out certain facts as providing the background for instituting the suit which gave rise to the second appeal. The managing director of the first defendant filed O.S. No. 1243 of 1959 for recovery of a sum of Rs. 2,302 -99 from the plaintiff in the suit. The plaintiff also filed O.S. No. 1419 of 1959 against all the defendants in the present suit for production of their accounts of sale etc,, for the period from 1st February, 1957, for appointment of a Commissioner to examine the accounts and for arriving at the amount due to the plaintiff, including damages and for ordering the defendants in that suit to pay the amounts so found due by the Commissioner. Since we are concerned only with the latter suit, namely, O.S. No. 1419 of 1959, a reference; to the facts in that case is necessary and relevant. The case of the plaintiff in that suit was that he was the sole canvassing agent of defendants 2 and 3 for the sale of pumps manufactured by them and he was so appointed by a letter dated 1st February, 1957, under which he was entitled to a commission of 5 per cent. in respect of the sales effected by or through him and an overriding commission of 2 1|2 per cent. on all the sales effected by defendants 2 and 3 over certain areas specified in that letter. The defendants resisting the claim inter alia contended that the letter dated 1st February, 1957 was a forgery. In that suit, the trial Court framed several issues and three of them are necessary they being Issues 3, 4 and 5 and they are as follows: Issue 3 : Whether the letter dated 1st February, 1957 is a forgery? Issue 4 : Whether the plaintiffs are entitled to any commission; and Issue 5 : Whether the plaintiffs are entitled to demand accounting? The trial Court on Issues 3 and 4 found in favour of the plaintiff. It came to the conclusion that the plaintiff was acting as a commission agent of the two defendants upto the end of 1958 and was entitled to a commission of 5 per cent. on the sales and an annual overriding commission of 2 1|2 per cent. However, with regard to Issue No. 5 referred to above, the trial Court was of the opinion that the plaintiff, even according to his own case being only an agent of the defendants, had no right to demand an accounting from the defendants. Consequently, Issue No. 5 mentioned above, was decided against the plaintiff. In view of this finding the trial Court observed that the plaintiff Was not entitled to maintain the suit, for accounts. With this observation, the trial Court dismissed the suit, but pointed out that the plaintiff was at liberty to file a fresh suit' claiming the commission due to him on the same cause of action. " It is this judgment which becomes final has given rise to the present suit. ' I must point out that the common case of both the parties is that the dispute involved in the suit relates to only the overriding commission of 2 1|2 per cent. and not to the 5 per cent. on the sales effected by or through the plaintiff. Since the defendants concede that the plaintiff was their salesman and was entitled to the commission of 5 per cent., the present suit, namely, O.S. No. 1301 of 1960 was filed by the plaintiff for recovery of a sum of Rs 3,650 -17 representing the 2 1|2 per cent. overriding commission in respect of certain sales effected in the area covered by Exhibit A -l. The case of the plaintiff in his plaint was that he was the sole canvassing agent to the products of defendants 2 and 3 for six districts as per the appointment order dated 1st February, 1957. The claim of the plaintiff was resisted on several grounds, one of the grounds being that the letter dated 1st February, 1957, was a forgery and the fifth defendant who signed that letter was colluding with the plaintiff. The trial Court framed nine issues, Issue 2 being whether the suit is barred by res judicata and Issue 6 being whether the appointment letter dated 1st February, 1957, is a forgery. The trial Court by judgment and decree dated 24th November, 1961, decided these issues in favour of the plaintiff. The trial Court came to the conclusion that the suit was not barred by res judicata on the ground that the earlier suit was for rendition of accounts while the present suit was for recovery of money on accounts. With reference to Issue No. 6, the trial Court came to the conclusion that Exhibit A -l, namely, the letter dated 1st February, 1957, was not a forgery but a true and genuine letter binding not only on the second defendant -firm but also on the third defendant -firm by their conduct and payment of commission etc., and that they had appointed the plaintiff as their sole canvassing agent with effect from 1st February, 1957, for a "period of three years.
(3.) ON appeal, preferred by the defendants, the learned Subordinate Judge of Coimbatore reversed the judgment and decree of the trial Court and dismissed the suit of the plaintiff. As far as the contention regarding res judicata was concerned, the Court came to the conclusion that the suit of the plaintiff was barred by res judicata in view of the decision in O.S. No. 1419 of 1959. With regard to Exhibit A -1 the learned Judge came to the conclusion that that was a forged document in the sense that on 1st February, 1957, it was not in existence and that it was brought about subsequently in collusion between the fifth defendant and the plaintiff and that it was not binding on the defendant. The plaintiff has filed the present Second Appeal against this judgment and decree of the learned Subordinate Judge.;