L. R. SCOTT Vs. MOHAMMD DIN S/O. ALLAHABAD MUSALMAN

JUDGEMENT

(1.) THIS is an application for revision under Section 25, Provincial Small Cause Courts Act, dismissing the suit of the plaintiff applicant, one Mrs. Scott. The suit of the plaintiff-applicant was for recovery of Rs. 500 on account of a motor car which she alleged belonged to her and was sold away by the defendant non-applicant, Mohammad Din, appropriating the sale proceeds to himself. According to the plaintiff there was an agreement between her and the defendant that the latter should sell the car and apply the sale proceeds against a promissory note debt which he had to recover from her. The defendant denied that the car belonged to the plaintiff and pleaded that it was his own and according to him there was no such agreement as she had pleaded.

(2.) THERE was a previous suit between the parties in the same Court (Civil Suit No. 63 of 1942) in which the present defendant, Mohammad Din, was the plaintiff and the present plaintiff, Mrs. Scott, was the defendant. That suit was for recovery of the promissory note debt already referred to above. There, Mrs. Scott had pleaded that she had made over the car which was hers to Mohammad Din, that Mohammad Din had agreed to sell the car and apply the sale proceeds in satisfaction of the debt and that the debt was thus satisfied. The judgment in that suit is Ex. P-1 in which it was held that the ear did belong to Mrs. Scott and had been entrusted to Mohammad Din under the agreement pleaded by her but that the car was yet to be sold and that the debt was still due and outstanding. The, claim of Mohammad Din for recovery of the promissory note debt was thus decreed. The lower Court has held that the car did not belong to plaintiff but belonged to the defendant. The lower Court has also held that the decision in the previous suit did not furnish any bar of res judicata. Both these contentions have been contested before me by the learned Counsel for the plaintiff applicant.

(3.) THIS is exactly the case here. In Rango v. Mudiyeppa (99) 23 Bom. 296 it has been pointed Out that if the plaintiff succeeded in the former suit despite a finding against him that finding could not be res judicata, and as Parran C. J. there observed: "Upon that issue there cannot be said to have been a final decision. Exactly the same view has been taken in Kumarappa Chttiar v. Muthu Vijaya Raghunath A.I.R. 1932 Mad. 207 where support has been derived also from Ran Bahadur Singh v. Lucho Koer (85) 11 Cal. 301 and Midnaput Zamindary Co. Ltd. v. Naresh Narayan Roy A.I.R. 1922 P.C. 241 which illustrate the first of the above two rules. Mohammad Din had no doubt filed a revision application in this Court (Mohammad Din v. Mrs. L.R. Scott Civil Revn. No. 233 of 194l) in which he had in one of his grounds challenged the finding against him regarding the ownership of the car. It is also true that that revision application was dismissed. But these facts do not assist the contention that the previous decision was res judicata. Mohammad Din had no right to contest the finding regarding the ownership of the car and the fact that he unsuccessfully contested it, is not relevant. I accordingly hold that the decision of the previous suit is not res judicata.