Mitter and Macpherson, JJ.

1. The plaintiff in this case brought a suit against JewNarain Mahto and others for an account in regard to his share in a certainticca transaction; his allegation being that he was a partner with thedefendants in that ticca. It appears that these defendants had brought againsthim a suit for rent, alleging that they were the sole ticcadars, and that he,the plaintiff in this case, that is Abdul Majid, as a tenant of a portion ofthe ticca property, was liable to pay rant.

2. In that suit Abdul Majid, the plaintiff in this suit,amongst other things, pleaded that no suit for rent would lie against him, ashe was a partner in the ticca. It is thus clear that the issue whether theplaintiff in this suit, Abdul Majid, was a partner in the ticca with thedefendants or not, was common in these two suits. Evidence was taken in thesetwo suits bearing upon this issue, and it seems that by consent of the partiesthe evidence taken in one suit upon this issue was considered as evidence inthe other. The Court of First Instance decided this issue against the appellantbefore us, that is to say, it came to the conclusion that he was not a partnerin the ticca with the defendants. Against the decree for rent, which was passedagainst the appellant, he did not prefer any appeal, but against the decreewhich was made in the suit for an account, that is to say, against the order ofthe Munsif dismissing Abdul Majids suit, there was an appeal preferred. On theappeal the first question that had to be decided by the Appellate Court waswhether the appellant Abdul Majid was a partner with the defendants in theticca transaction or not, and it was contended on behalf of the defendantsbefore the Lower Appellate Court that that question was no longer open betweenthe parties, and that it could not be decided in the Appellate Court on theevidence, because the matter was res judicata. That contention rested upon theground that as the same question had been decided between the parties in therent suit, and as against the decision in the rent suit no appeal waspreferred, that decision, so far as this question of partnership is concerned,is final between the parties in the present suit for an account. TheSubordinate Judge of Patna, Baboo Troylokya Nath Mitter, who heard that appeal,was of opinion that the contention of the respondents was right, and hedismissed the appeal, not on the ground that upon the evidence the plaintiffsallegation of co-partnership was not made out, but on the ground that thematter as contended for by the pleader for the respondents was res judicatabetween the parties. On second appeal this question was raised, viz., whetherthe view taken by the Lower Appellate Court was correct or not, and the recordwas sent back to the Lower Appellate Court to decide this issue, viz., whetherthe appellant was a partner or not upon the evidence, reserving the question ofres judicata on that occasion. If the decision of the Appellate Court upon theevidence had been in favour of the defendants, the question of law, viz.,whether the decision in the rent suit upon the question of partnership was resjudicata or not, would not have arisen; but on remand the Lower Appellate Courthas found upon the evidence on the record, that the allegation of theappellant, that he was a partner in the ticca transaction with the defendants,was established. We have, therefore, now to decide the question of res judicatain this case.

3. We are of opinion that the Subordinate Judge, BabuTroylokya Nath Mitter, was not right in dismissing the appeal, and theappellants suit upon the ground that it was barred by Section 13 of the CivilProcedure Code. Section 13 says that no Court shall try any suit or issue inwhich the matter directly and substantially in issue has been directly andsubstantially in issue in a former suit between the same parties, or betweenparties under whom they claim. Now the suit for an account was not brought onthe same cause of action as the suit for rent. What was contended for was thatthe issue as to partnership could not be decided on the evidence by theAppellate Court because that issue had been decided against the appellant inthe Munsifs Court in the rent suit, and no appeal had been preferred againstthe decision of the Munsif in that suit. Now Section 13 says that no Courtshall try any issue which has been directly and substantially in issue in aformer suit between the same parties. I omit the word "suit," becausethe question whether the present suit could be decided does not arise. Now inthis case we know that that issue was tried by the Court of First Instance.There was no bar at the time under Section 13, because at; that time that issuehad not been tried and decided, and therefore could be no bar under Section 13when the trial was held in the Court of First Instance. That being so, and thefirst Court having decided the case on the evidence, we are of opinion that theAppellate Court was bound to decide the appeal also upon the evidence. ThatCourt was not holding a trial of the issue, and therefore Section 13 could notapply. The Subordinate Judge was deciding the suit in appeal, the issue havingbeen already tried in the Court of First Instance; and therefore the words ofSection 13 do not warrant the decision of the first Appellate Court to theeffect that in that Court the matter was not open between the parties. Nor ongeneral principles do we think that the view taken by the lower Appellate Courtcan be supported. The Court of First Instance tried the two suits together, andupon the evidence taken in both, the evidence taken in the one suit beingconsidered as evidence taken in the other by consent of the parties, came to acertain conclusion. The appellant before us, who was plaintiff in one of thesuits and defendant in the other, did not think it worth his while to appeal inone of these suits, but he did appeal against the conclusion at which the lowerCourt had arrived in the other suit, and we do not see any valid reason why theappellant should be deprived of his right to have the opinion of the AppellateCourt on a question which had been considered and decided by the Court of FirstInstance. We are, therefore, of opinion that Section 13 was not a bar to theAppellate Courts deciding the point on the evidence, and as that Court hasdecided in favour of the appellant, that he was a partner in the ticcatransaction, the case will now go back to the Munsif to dispose of it and tryall the remaining issues arising in the case. The costs of this appeal will becosts in the cause, and will abide the final result.

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Abdul Majid vs. JewNarain Mahto and Ors. (03.12.1888 -CALHC)