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TMI Blog1977 (1) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... to the plaint claimed by the plaintiff to be joint family property. It appears that there was no dispute with regard to certain items, but, the defendant-appellant claimed other items as his exclusive property on the ground that they had been purchased from his personal income. due to his own enterprise and exertions and ability in carrying on business. The Trial Court had accepted the case of the defendant-appellant that all items, except No. 35 and a part of item No. 52 which belonged, to the 3rd defendant, were the self-acquired properties of the defendant-appellant. The High Court reversed this finding on the ground that there was little reliable: evidence on record as to. the exact source of the. fund with which the first defendant started the trade . The High Court rejected the submission of the defendant-appellant that, when the Tobacco business under consideration was started, Narayana being the Karta of the family, the fact that the eldest son, Venkateswara, the defendant-appellant, was carrying on the business, raised a presumption that it was the separate or self acquired business of Venkateswara. The High Court relying on certain documentary evidence, including the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire trade to be settled as on 2-3-1124, the date of that partition suit, this suit has to be dismissed . The judgments were, therefore, two. separate ones given in one continuation but under' separate headings. Separate decrees were prepared in each appeal relating to a separate case. As the defendant appellant did not seek leave to file any appeal against the High Court's judgment and decree in the money suit and there is no appeal before us against the decree in the money suit, a preliminary objection is taken on the ground that the defendant's appeal now before us is barred by res-judicata. Learned Counsel for the defendant-appellant urges that the two suits were different in nature and were filed in different Courts originally so that the Court trying the partition suit and the Court in which the money suit was triable were not Courts of coordinate jurisdiction. It was also. objected that the partition suit was earlier and the money suit having been filed sixteen days later could not be deemed to be a suit decided earlier. Furthermore, it was pointed out that the judgment was common. It was also urged that. all the four brothers were parties to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sy. As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the jumdgment. The question of resjudicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res-Judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decrees in substance are one . It seems to us that to be fair to confine the ratio decidendi of the Hyderabad case to cases where there is only one suit. In the case now before us, not only were the decrees different but the suits were different. The mere fact that the judgments in the two suits were given together or in continuation did not matter. In fact, even in form. the judgment in the appeal relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all cause nature, in which no second appeal is allowed by law, is no bar to a subsequent suit, in the same Court, which, not being of a small cause nature, is open to second appeal . We have to remember that Small Cause jurisdiction is a limited one exercisable only in specified matters. Decisions given beyond Jurisdiction to try an issue cannot operate as res ]udicata. Our attention was drawn to explanation II of section 11, on behalf of the respondents. It reads: Explanation II. For the purposes of this Section, the competence of a Court shall be determined irrespective of any provision as to a right of appeal from the decision of such Court . It seems to us that section 11 itself refers to. a Court which actually tries the, two suits. We think that, in the circumstances of the case before us, the incompetence of the Court, in which the money suit was initially filed, to try the partition suit did not matter when the actual hearing of both the cases took place in the same Court. That Court was, obviously, competent to try both the suits. After the money suit had been transferred from the Court of the Munsif, the Second Additional Sub Judge actually tried and decided bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The decision of the District Court was given in an appeal arising out of a suit which, though instituted subsequently, stood finally decided before the High Court disposed of the second appeal. The decision was, therefore, one in a 'former suit' within the meaning of section 11, Explanation I, Civil Procedure Code . The expression former suit according to explanation I of section 11, Civil Procedure Code, makes it clear that, if a decision is given before the institution of the proceeding which is sought to be barred by res judicata, and that decision is allowed to become final by operation of law, a bar of res judicata would emerge. This as learned counsel for the respondents rightly submits, follows from the decision of this Court in Lonankutty's case (supra). The only other point which we need consider is whether the fact that the money suit was only between the defendant-appellant and one of his brothers, who was also a respondent in the partition suit, makes any difference to the applicability of the principle of res judicata in this case. Learned Counsel for the appellant submits that the defendant-appellant could not come within the ambit of Explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the difficulties in his way, filed after the hearing of the appeal was begun before us, an application for condonation of delay in applying for leave to appeal against the judgment of the High Court in the money suit. He submits that, in view of the uncertain position in law, we should try to extend equities as much as possible in his client's favour. On the other hand, learned counsel for the respondents points out that the objection based on the bar of res judicata was taken as long ago as 1968 by the respondents. It seems to us that the delay in waking up to the existence of the bar on the part of the appellant is much too long to be condoned. Moreover, we also find that the judgment of the High Court, based on the admissions of the appellant, does not disclose any error of law so as to deserve grant of special leave to appeal. Indeed, in so far as we could express any opinion at all upon the merits of the judgment of the High Court, based as it is upon documents containing admissions of the defendant-appellant, it seems to us that the appellant would have a very uphill task indeed in arguing his appeal even in the partition suit. We may mention here that the partition s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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