DAVE, J. - (1.) THIS is a second appeal by one of the defendants against the judgment and decree of the learned Civil Judge, Bikaner, dated the 29th May, 1961, upholding the judgment and decree of the Munsif, Bikaner, dated the 28th May, 1959.
(2.) THE facts giving rise to it may be briefly stated as follows: Respondent No. 1, firm Meghraj Mohanlal filed a suit against the present appellant Lachhmi Narain and respondents Nos. 2, 3 & 4 namely Hari Kishan, Nathmal and Badri Narain, for recovery of Rs. 540/- in the court of the Munsif, Bikaner. It was averred by the plaintiff that all the four defendants (including the present appellant) carried on business at Kolayat as partners of a firm which was known as Tarachand Lachhmi Narain. On behalf of the said partnership firm, one of its partners namely Hari Kishan borrowed a sum of Rs. 425/-on 8th February, 1953, and agreed to pay an interest at the rate of 9% per annum. An entry to this effect was made by him in the account-book of the plaintiff and signed by him. This loan remained unpaid and therefore the plaintiff prayed for a decree for the principal amount of Rs. 425/- and Rs. 115/- as interest against all the four defendants. Lachhmi Narain defendant contested the suit on the ground that Hari Kishan was never a partner of the firm Tarachand Lachhmi Narain and that the said firm had not borrowed the amount (claimed by the plaintiff) through Hari Kishan. Hari Kishan defendant admitted that all the four defendants were partners of the firm Tarachand Lachhmi Narain, but his plea was that there were dealings between that firm and a firm called Ramratan Meghraj, that an amount of Rs. 425/- was payable to firm Ramratan Meghraj and the entry made by him related to that transaction. The other two defendants did not put in appearance and so the case proceeded against them exparte. The trial court framed several issues, of which issue No. 5 was as follows: - "whether defendant Hari Kishan was a partner of the firm Tarachand Lachhmi Narain". When the case came for hearing before the court on 12. 5. 59, it was urged on behalf of defendant Hari Kishan that the question involved in the said issue was already decided in other cases and therefore the matter was res judicata. This point was considered by the trial court on 28th May, 1959. It appears from the order of the said date that a judgment of the court of the Civil Judge was produced on behalf of the defendant but it was found by the trial court that an appeal against the said judgment was pending and therefore the decision given in that case was not held to be res judicata. The defendant then produced a copy of another judgment of the court of Munsif, Bikaner, dated 10th October, 1956, given in case No. 406 of 1954 (Badhu Bai Vs. Lachhmi Narain, Hari Kishan, Badridas and Nathmal ). After going through the said judgment, the trial court came to the conclusion that the point involved in the issue, reproduced above, was concluded by the said judgment dated 10th October, 1956, and that since defendant Lachhmi Narain had not filed any appeal against that judgment, it was final between the parties. The said issue was therefore decided in favour of the plaintiff and a decree for Rs. 548/- was passed against all the four defendants. Aggrieved by this decree dated 28ch May, 1959, defendant No. 1 Lachhmi Narain went in appeal but it was dismissed by the Civil Judge, Bikaner, on 29th May, 1961, and so he filed the present appeal. It is contended by learned counsel for the appellant that in case No. 406 of 1954, defendant Hari Kishan did not put in appearance and the case against him proceeded exparte. It was only defendant Lachhmi Narain who had contested that suit and even at that time, it was urged by him that Hari Kishan was not a partner of the firm Tarachand Lachhmi Narain. The trial court, no doubt, came to the conclusion in that case, that Hari Kishan was a partner of the said firm but that decision was res judicata only between the plaintiff and defendant Lachhmi Narain and not between the defendants inter se because the point was never in dispute between the defendants. Moreover, the plaintiff in that case had urged that Hari Kishan had signed the document as a karkun of the firm and not as a partner. Defendant Lachhmi Narain had also admitted the position of Hari Kishan as a karkun of the firm. In support of his contention, learned counsel has referred to Bhoom Reddi Vs. Hyderabad State (1 ). Learned counsel for plaintiff-respondent has on the other hand tried to support the view taken by both the courts below and he has referred to the observations of their Lordships of the Privy Council in Mt. Munni Bibi Vs. Tirloki Nath (2 ). The other respondents have not cared to appear in this Court. Thus, the short point for decision before this Court is whether the decision given by the Munsif, Bikaner, on 10th October, 1956, in civil case No. 406 of 1954 operated as res judicata in the present case. It appears from the judgments of the two courts below that they have also placed reliance on the decision of their Lordships of the Privy Council given in Mt. Munni Bibi's case (2 ). In that case, it was observed by their Lordships that in order to apply the rule of res judicata as between co-defendants the following conditions should be fulfilled : - (1) There must be a conflict of interest between the defendants concerned; (2) It must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (3) the question between the defendants must have been finally decided. The perusal of the judgments of the two courts below shows that they have only referred to this decision but not taken pains to point out if all the three requisites pointed out by their Lordships of the Privy Council were present in the case (No. 406 of 1954) referred above. I have gone through the judgment given in Badhu Bai Vs. Lachhmi Narain and others by the Munsif Bikaner on 10th October, 1956. It appears that the plaintiff in that case had brought a suit for Rs. 630/- against all the four defendants. It was averred by the plaintiff that all the four defendants were partners and proprietors of the firm Tarachand Lachhmi Narain and that one of the partners namely Hari Kishan had as karkun of the said firm borrowed Rs. 700/- repayable with interest at the rate of Rs. 9%, that he paid Rs. 123/8/9 for interest and after understanding the account wrote another document on 4th April, 1952. Thereafter, he paid Rs. 200/- on 11th October, 1952. Thus, the principal amount of Rs. 500/- and Rs. 130/- for interest were still payable by all the four defendants. Defendant Lachhmi Narain pleaded that he alone was the proprietor of the said firm and that he had borrowed Rs. 700/- from the plaintiff through Hari Kishan who was his employee. He denied the partnership of Hari Kishan and other defendants in the firm. It was further pleaded by him that he had sent Rs. 600/- through Hari Kishan and that he was liable to pay only Rs. 100/-and interest. The trial court decided in that case that all the four defendants were partners of the firm. It was further remarked that even if it be assumed that Hari Kishan was only an employee of defendant No. 1, he had repaid only Rs. 200/- to the plaintiff and therefore Rs. 500/- still remained payable. A decree for Rs. 630/- was therefore passed against all the four defendants. Now it is apparent that the trial court in that case certainly gave a decision that, all the four defendants including Hari Kishan were partners of the firm Tarachand Lachhmi Narain, but it is equally clear that none of the three defendants including Hari Kishan appeared in the court and asserted if they were partners of the firm Tarachand Lachhmi Narain. It was only defendant Lachhmi Narain who had contested this suit and denied the partnership of Hari Kishan and the other two defendants and he alone joined issue with the plaintiff on that point. Now one of the essential requisites as pointed out by their Lordship of the Privy Council in Mt. Munni Bibi's case (3) in order to apply the rule of res judicata as between; co-defendants is that there must be a conflict of intereit between the defendants concerned in 'the case which is relied upon in support of the plea of res judicata. In my opinion, this essential requisite was not fulfilled in case No. 406 of 1954 referred above. As pointed out above, none of the other three defendants including Hari Kishan cared to appear in that case and it was not pleaded by anyone of them if they were partners of the firm Tarachand Lachhmi Narain. On the contrary, defendant Lachhmi Narain had pleaded that he was the only proprietor of the said firm. He also undertook the responsibility for the debt of the plaintiff. It was admitted by him in clear words that Hari Kishan was only his employee and that he had borrowed the sum of Rs. 700/- through him as his employee and that he had signed the document in that capacity. There was thus no conflict of interest between the defendants inter se. On the contrary, Lachhminarain was in a way shielding the other defendants by taking the entire responsibility for the re-payment of the loan upon himself. According to his pleading, he alone was responsible for obtaining the loan and similarly he alone was responsible for its repayment. No doubt he raised a plea that only Rs. 100/- were repayable but that was on the ground that Hari Kishan as his employee was given Rs. 600/- to be paid to the plaintiff and the defendant thought that this amount must have been paid by him, The trial court also observed that if Hari Kishan failed to repay the full amount which was entrusted to him by defendant No. 1 Lachhminarain, he was still responsible for the outstanding amount which was repayable to the plaintiff. The trial court certainly passed a decree against all the four defendants holding that all of them were partners of the firm on the basis of oral evidence, but even then it cannot be said that there was a conflict of interest in that case between the defendants inter se, because that decree was passed against other defendants inspite of the plea of defendant No. 1 taking the entire responsibility of the loan upon himself. Defendant No. 1 Lachhminarain could not file an appeal against that judgment because so far as he was concerned, he had to repay the amount of the decree. He could not possibly file an appeal on behalf of the other defendants in order to save them from their responsibility to repay the decretal amount. Thus, one of the three essential conditions not having been fulfilled, the said judgment, to my mind, did not operate as res judicata. In Bhoom Reddi's case (2) a suit for the recovery of a debt incurred by one Raj Reddy was filed by the plaintiff. The borrower having died, the suit was filed against his widow Tulsamma and his adopted son. The adopted son remained exparte, while Tulsamma in her written statement denied his adoption. An issue regarding this matter was framed between the plaintiff and Tulsamma and it was decided in favour of the plaintiff. A decree was passed against the assets of the deceased. Later on, the Revenue Minister sanctioned the succession of certain properties in the name of the widow Tulsamma and the claim of the person who asserted himself to be adopted son of Raj Reddy was rejected. It was urged in a writ application before the High Court that the decision of the court in the civil suit referred above in which the applicant was held to be an adopted son of Raj Reddy operated as resjudicata between co-defendants. In those circumstances, it was observed that the said decision could operate as res judicata only between the plaintiff and the defendant. It was further observed that "if a defendant does not appear or does not file a written statement, the claim will be deemed to have been denied. . . . . . . . . In the case under consideration merely because the applicant did not appear, it cannot be assumed that he had admitted the plaintiff's allegation that he is the adopted son of Raj Reddy. There was no conflict between him and his other co-defendant, Tulsamma on this point. The issue was joined between the plaintiff and Tulsamma and what the plaintiff has succeeded in proving against her cannot operate as res judicata between her and the applicant. " I agree with learned counsel for the appellant that the view expressed above supports his arguments in the present case. The appeal is therefore allowed. The judgments and decrees passed by both the courts below are set aside. The case is ordered to be remanded to the Munsif Bikaner with direction to proceed in the matter and decide the case on merits on all the issues. The costs of this Court will be paid by defendant Hari Kishan to the appellant. . ;