Authored By : Mitter, William Comer Petheram

Mitter, J.

1. I would answer the question referred to us in theaffirmative. For the reasons given by me in my judgment in Gajju Lall v. FattehLoll 1 Bing. N.C. 606 I think that the judgment in the previous case isevidence under Section 9 of the Evidence Act bearing upon the question of theidentity of the tenure in respect of which the present suit has been broughtwith the tenure in respect of which the previous suit was brought.

William Comer Petheram, C.J.

2. The plaintiffs claim to be entitled, by purchase, to a 1anna 8 gundas share of an estate, under which estate they allege that thedefendants hold certain tenures; and this suit is brought to recover theirshare of the rent of the tenures. The question referred to us is whether adecree obtained in a former suit by another sharer in the same estate againstthe same defendants is admissible in evidence, the object being to prove thedefendants possession of the tenures.

3. When that decree is examined, all that appears from it(and nothing but the decree itself was put in) is this: that the plaintiff inthat suit had acquired also by purchase, a share in the same estate in whichthe now plaintiffs say they have a share, and he sued defendants for theirseparate share of the rent of the same tenures now in question, making the nowplaintiffs co-defendants; they did not appear. Two defences were raised; first,a denial, or at least a refusal to admit possession of the tenures. This wasfound against the defendants. The second defence was limitation, on the groundthat the person entitled to the particular share of the rent then sued for hadnot received any rent for more than twelve years. As to this, the Court said,first, that there was some evidence of receipt of that share of the rent withintwelve years; and, secondly, that however that might be, the defendants beingin possession of the tenures were liable for the zamindari rent, and could nottherefore repudiate any particular share of it. On this we think it clear thatno question of res judicata can possibly arise. The test is mutuality. If theformer suit had been dismissed, could it have been said that the now plaintiffswere barred Might they not have said, we had and have to do with our ownshares, we neither knew nor cared about other peoples shares: why should wehave meddled in their suit

4. Apart from res judicata, the question whether the decreereferred to was admissible in evidence is, we think, concluded by the two FullBench cases Gujju Lall v. Fatteh I.L.R. Cal. 171 and Brojo Behari Hitter v.Kedar Nath Mozumdar I.L.R. Cal. 580.

5. As the judgment in question was the ground of decision inthe lower Appellate Court this appeal must prevail. The decree of that Courtwill be set aside, and that of the first Court affirmed with costs in allCourts.

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Brojo Nath Pal Chowdhry and Ors. vs. Surender Nath PalChowdhry and Ors. (14.08.1886 - CALHC)



IN THE HIGH COURT OF CALCUTTA

Decided On: 03.04.1886

Appellants: Wallis and Ors.

Vs.

Respondent: Taylor

Honble Judges/Coram:

William Comer Petheram, C.J., James Quain Pigot andTrevelyan, JJ.

Subject: Civil

Catch Words

Mentioned IN

Case Note:

Small Cause Court Presidency Towns Act (XV of 1882), Section18--Jurisdiction--Army Act of 1881 (44 & 45 Vic., Clause 58), Sections 148,151--Leave to sue.

JUDGMENT

James Quain Pigot, J.

1. It appears to us clear that the Small Cause Court hasjurisdiction in such a case as the present.

2. By the Small Cause Court Act, jurisdiction is expresslyconferred on Small Cause Courts, in cases the facts of which are such as thoseappearing here; and all that has to be considered in this case is, whetherthere is any provision in the Army Act of 1881 which takes away thatjurisdiction.

3. We are of opinion that there is none. The doubt which hasbeen felt in the matter arises from its being apparently supposed, that thewords "shall be cognizable" in Section 151 of the Army Act, mean"shall be cognizable only."

4. We are of opinion that there is nothing in that sectionof the Army Act, either in express words or by reasonable inference, to lead usto believe that it was the intention of the legislature in that section toaffect the jurisdiction of the Small Cause Courts. We therefore answer thequestion referred to us in the affirmative.

5. We think it desirable to add that the discretion of theSmall Cause Courts in giving leave to sue under Section 18 of Act XV of 1882 isone that ought to be only very cautiously exercised, in cases such as the onebefore us.

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Wallis and Ors. vs.Taylor (03.04.1886 - CALHC)