Wort, J.On 2nd September 1925, Mrs. Gertrude Oates of the one part and Mrs. Millicent DSilva of the other part entered into a partnership deed, and thereafter it appears carried on business as hotel, proprietresses at the Silver Oaks Hotel, Ranchi. On 26th October 1927, there was an agreement on the part of Mrs. Oates to pay Mrs. DSilva rent for her portion of the hotel premises. Out of those two facts arose two actions which first of all came before the learned Munsif and eventually on appeal before the learned Judicial Commissioner of Chota Nagpur. As regards the first action Mrs. Oates claimed against Mrs. DSilva an injunction restraining her from carrying on another hotel business contrary to the Articles of Partnership, and the main issue in that case was whether on 1st April 1926, the partnership had been dissolved or not.

2. The learned Munsif in the trial Court and the learned Judicial Commissioner in the appellate Court came to the conclusion that it had. In those circumstances Mrs. Oates failed in her action, as I have stated, it was in October 1927, after certain events to which I shall presently briefly refer, an undertaking was given by Mrs. Oates to pay Mrs. DSilva rent for her portion of the premises, as appears from the judgment of the learned Munsif that as regards the buildings of the Silver Oaks Hotel, the two ladies were proprietresses each enjoying a moiety. At the same time as the action to which. I have already referred as the partnership action was brought, Mrs. DSilva brought an action against Mrs. Oates for rent and it is that action out of which this appeal arises. To understand the points which have been raised, it is necessary, to state one or two facts.

3. It was in March 1926, about six months after the partnership was started that these two ladies came to consider the question of selling their respective shares in the Silver Oaks Hotel. The reason as far as I know was not stated, but they were minded, as I have said, to sell their shares, and while they were considering the matter, a Mr. Clayton came along and offered to rent the Silver Oaks Hotel as it would appear his lease at a competing hotel was coming to an end and the landlord of the premises was asking him to pay an enhanced rent which, in his view, was exorbitant. Negotiations then took place between Mr. Clayton and these two ladies, and ultimately on 1st April Mrs. DSilva wrote to Mrs. Oates saying that she had allowed Mr. Clayton to go into possession, in the meantime, On 26th of March after some correspondence between Mrs. DSilva and Mrs. Oates, Mrs. Oates having sent a telegram which was to the effect "Accept Claytons offer writing."

4. Now, in the partnership action it was contended, and the contention succeeded, that it was this letting Mr. Clayton into possession of the Hotel by mutual consent of both parties, that is to say Mrs. DSilva on the one hand and Mrs. Oates on the other, that had brought the partnership to an end. The learned Judges did not express themselves in this way, but it seems to have been in the minds of the Judges that what had happened was that these two partners, by allowing Mr. Clayton to go into possession, had put it beyond their power to continue the partnership, and therefore it must be deemed to have come to an end. That was certainly the view which Mrs. DSilva took. Now as regards this suit for rent which, I have said, Mrs. Oates had agreed to pay rent at the rate of Rs. 150 a month. Rent was paid for a month or two but later it fell into arrear and eventually there was a claim for Rs. 1,878-9-0.

5. The contention before us in this appeal is that the partnership had not come to an end and that consequently what the plaintiff was claiming in the action could only be a share of the profits of the partnership and that in no circumstances could rent be said to have accrued. I should add that the plaintiff in the action claimed by reason of a letter dated 13th May 1926, to have raised the rent as from 1st June 1927, but both the Courts that is to say the Court of the Munsif and the Court of the Judicial Commissioner rejected that claim made by the plaintiff on the ground that there was no consent by the defendant to pay this enhanced rent of Rs. 200 a month.

6. Whether that decision was right or wrong we are not concerned, because there is no appeal in regard to that question in this action; but we are here concerned with the matter of whether, as contended by the defendant, the partnership is still subsisting. It seems to me that the answer to that question is very clear and clear for several reasons: In the first place the question of whether the partnership had come to an end or not was clearly a question of fact, and the two Courts, which had jurisdiction to determine it, have come to a clear finding. It is contended by Sir Ali Imam on behalf of the defendant that this is a question of law; it is a question of construction of letters which passed between the parties and therefore is a matter of law in that sense. But what the learned Judges had to determine was whether on all the facts and circumstances of the case, it could be held that by mutual consent the partnership had ceased.

7. Although the learned Judicial Commissioner has referred to letters, he refers to them merely for the purpose of determining what the views of the partners themselves were on this matter. On that account alone I should have, in my judgment, to hold that this appeal fails. But a further point is raised and that is, so far as the question of dissolution of partnership is concerned, that it is a matter which has been finally decided between the parties and therefore we are precluded from further investigating it; in other words the principle of res judicata applies.

8. Sir Ali Imam contends that Section 11, Civil P.C., does not apply to the facts, of this case. I should have stated, in mentioning this matter, that when these two actions came on they were tried together and they were the subject-matter of one judgment, although the Courts passed separate decrees.

The clause to which reference is made is explanation 1 to Section 11. The expression "former suit" denotes a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. As I understand the contention it is this, that when the Judicial Commissioner came to decide this question he decided both questions involving the same point, namely, whether there has been a dissolution of partnership. On this point Sir Ali Imam admits that that matter has to be decided on the day on which we are hearing this appeal, and the question that we have got to ask ourselves is whether at this moment there has been a decision on the question of dissolution of the partnership. In my judgment the case of Isup Ali and Others Vs. Gour Chandra Deb, disposes of this question. It is true that there have been differences of opinion in the matter, the Madras High Court in particular coming to a decision different from that which has been arrived in the case to which I have just made reference, but the facts of the case of Isup Ali and Others Vs. Gour Chandra Deb, are almost identical with those which we have to deal with in this case.

9. There were two cases there which I shall call the earlier case and the other later case; they were the subject-matter of a common judgment but by reason of defects in the notices of appeal and other proceedings one appeal failed, that which related to the later case, and the earlier one came on for hearing. The same question however arose in both actions, and it was held in those circumstances that, although in point of time the question which had to be decided was finally decided in the appeal of the latter of two cases, the decision which was arrived at in that case was binding on the High Court when it came before it in appeal.

10. But quite apart from the decision in that case, it seems to me that the decision of the question is concluded by general principles of law. My learned brother pointed out in the course of the argument that it we were to hold otherwise it might result, if we decide in favour of the contention that dissolution had taken place, in the defendant on the one hand having a decision in her favour on that point and the plaintiff on the other by reason of the judgment of the Judicial Commissioner having a decision to the opposite effect. It is in the public interest that litigation should cease. That is a free translation of a very well known maxim.

11. In this connexion I should like to refer to a decision of the Judicial Committee in the case of Hook v. Administrator General of Bengal AIR 1921 PC 11. There to quote the words of Lord Buckmaster, who delivered the opinion of the Judicial Committee, it was said:

The learned Judge held that this matter had already been definitely settled and in addition gave reason why he adhered to his former opinion.

12. Lord Buckmaster pointed out that this was superfluous:

the question as to the perpetuity had been definitely and properly before him in the former case and was in fact decided without any reservation, as is made plain by the terms of the judgment itself which showed that the determination of the dispute as to the perpetuity was the foundation of the whole judgment. Lord Buckmaster went on to point out

that therefore the matter was finally settled. Then he stated:

The appellate Court however took a different view, and regarding the question as still open, decided it against the appellant, but the error in their judgment is due to the fact that they regarded the question as completely governed by Section 11, Civil P.C. That section prevents the retrial of issues that have been directly and substantially in issue in a former suit between the same parties, and this question obviously arises in the same and not in a former suit, but it does not appear that the learned Judges attention was called to the decision of this Board in Ram Kirpal Shukul v. Rup Kuari [1883] 6 All 269 which clearly shows that the plea of res judicata still remains apart from the limited provisions of the Code, and it is that plea which the respondents have to meet in the present case.

13. Sir Ali Imam, as I have already stated, endeavoured to confine us to the words of explanation 1 to Section 11, Civil P.C., but as the Lords of the Judicial Committee of the Privy Council pointed out it is not dependent upon the mere words of Section 11 of the Code itself. But the question whether it is res judicata or not has to be decided on general principles of law. In my judgment this matter was clearly concluded by the decision of the Judicial Commissioner in the action which was brought under the partnership deed. The other question which Sir Ali Imam puts forward is really a branch of the same point. He contends that what was let out to Mr. Clayton was not merely the building but also the partnership business in the sense that Mrs. Oates, and Mrs. DSilva remained in partnership and that partnership business continued, and further that Mr. Clayton, on taking over the lease of the premises, had in a sense undertaken to manage it for the partnership.

14. All that need be said about this is that there was no suggestion of that in the Courts below and the only possible support that can be given to the contention is that if it was so raised it was got through para. 5 of the written statement. But a perusal of that paragraph and the next paragraph of the written statement quite clearly shows that what was stated there was a matter entirely divorced from the point which I have stated is now taken by Sir Ali Imam. What clearly we should have to ask if the question came to be decided, whether the letter written to Mr. Clayton offering him a lease of these premises entitled him to carry on the business of the partnership between the two ladies, or whether going into possession under the lease he had anything to do with the partnership business in any way.

15. This matter could have been disposed of had the defendant thought fit to produce the lease or the draft lease under which Mr. Clayton went into possession but this was not so produced. In my judgment, for the reasons which I have already stated, it seems to me that this appeal must fail and must be dismissed with costs.

Mohammad Noor, J. --I agree. In my opinion the trial of the issue about the dissolution of the partnership is barred by res judicata. The decision in the case of Isup Ali and Others Vs. Gour Chandra Deb, which has been referred to by my learned brother is a clear authority for this proposition.

16. As has been pointed out by my learned brother the doctrine of res judicata is not confined in the provisions of Section 11, Civil P.C. It is based upon the principle that multiplicity of suits should be avoided and there should be an end to litigations. In Dhani Singh and Others Vs. Sri Chandra Choor Deo and Others, , Kulwant Sahay, J., held that if more than one suit were decided by a common judgment and if the decree in one of them became final by the party not appealing against it, the issue decided in it operated as res judicata in other suits even at the appeal stage. In my opinion, if I may say so, the law has been correctly laid down. Apart from res judicata, the question of dissolution of the partnership is concluded by the concurrent findings of fact arrived at by the Courts below.

17. The conclusion of the learned Judicial Commissioner is not based as is contended upon the construction of the various letters which have been produced in the case, the meaning of which is clear and there is no dispute about it. His conclusion is based upon the cumulative effect of the letters and upon what the parties themselves understood their position to be when the Silver Oaks Hotel was leased to Mr. Clayton. The appeal should be dismissed with costs.