JUDGMENT B. Dayal, J.
1. This is a plaintiff's second appeal which has been referred to this Division Bench by a learned Single Judge of this Court as an important question of law was involved therein.
2. The plaintiff filed the present suit for the recovery of Rs. 1,527-8-0 on the allegation that the firm Agarwal Glass Works which was carrying on the business of manufacturing and selling glass phials at Harduaganj District Aligarh sold glass phials worth Rs. 2,700 to the defendant, who gave a cheque for the said amount of Rs. 2,700 on the 4th of October, 1948 on the Hindustan Commercial Bank but the cheque was dishonoured. The plaintiff then demanded the money from the defendant who paid only Rs. 1,506. The plaintiff therefore, filed a suit for the recovery of the balance together with interest thereon at six per cent per annum in the Court of the Munsif of Koil district Aligarh on the 24th of February, 1950 In the plaint, it was alleged that the transaction had taken place at Harduaganj within the jurisdiction of the Court. The payment was also agreed to be made at Harduaganj and, therefore, the Munsif at Aligarh had jurisdiction to try the suit.
3. At the trial, the defendant, among other pleas, denied the jurisdiction of the Court and contended that the goods had been sold to the defendant at Kanauj and there was no contract to pay at Harduaganj Parties led evidence in support of their respective cases The learned Munsif disbelieved the plaintiff's evidence and held that the Court at Aligarh had no jurisdiction to entertain the suit The appeal filed by the plaintiff was dismissed by the learned civil judge on the 19th of May, 1954. The plaint was returned to the plaintiff for presentation to the proper Court on the 25th of August, 1954. The plaintiff then filed the present suit in the Court of Munsif at Kanauj on the 26th of August 1954. The defendant in this Court contended that the suit was beyond time, that the plaintiff had no right to file the suit as the firm Agarwal Glass Works was not registered under the Indian Partnership Act and that the defendant had paid the whole price. The trial Court decreed the suit and held that the defendant had not paid the whole price, that the balance of the amount claimed by the plaintiff was due, that the suit was not barred by Section 69 of the Indian Partnership Act as the plaintiff firm had been dissolved before the suit, that the plaintiff was entitled to the benefit of Section 14 Limitation Act and that the suit was within time. The suit was thus decreed for a sum of Rs. 1,354.
The defendant filed an appeal and reagitated all the points that were decided against him by the Munsif. The lower appellate Court only dealt with the question of limitation and did not decide any other point. On the question of limitation, the Court below merely considered the findings of the learned Munsif and the Civil Judge at Aligarh that no contract for payment of the money at Harduaganj had been proved and that the goods had not been purchased at Harduaganj. The Court did not go into the evidence produced by the parties in the suit but based its decision on the findings of the Court at Aligarh and concluded that the plaintiff did not prosecute the suit at Aligarh with good faith as he deliberately made false allegations in the plaint in order to give jurisdiction to the Aligarh Court. It held that the plaintiff could not get the benefit of Section 14, Limitation Act. On these findings the suit was dismissed as time-barred and the present appeal has been filed against that decree.
4. Learned counsel appearing for the appellant in this Court contended that the lower appellate Court was wrong in basing its decision upon the findings of the Aligarh Court. The question of limitation was raised in the Court below and the Court was bound to decide the matter on the basis of the evidence before it. On the other hand, learned counsel for the respondent contended that the findings of fact recorded by the Aligarh Court wore res judicata and the Courts below could not reopen that question. The lower appellate Court was according to him right in relying upon the findings of the Aligarh Court and holding that the plaintiff had made false allegations in the plaint in order to give jurisdiction to the Aligarh Court The main point for consideration in this appeal on this question therefore, is whether the decision of the Aligarh Court barred a consideration of the same points in the Court at Kanauj.
5. After hearing the learned counsel for the parties and after a consideration of the matter carefully, we have come to the conclusion that this appeal must be allowed. Before the Court at Aligarh, the only question for determination was whether the allegations of the plaintiff that the contract of sale had taken place at Harduaganj and it was agreed to pay the price to Harduaganj were proved or not. Both the parties led evidence and on the basis thereof, the Court disbelieved the plaintiff's evidence and held that the statements were not proved. But when the plaint was taken back and presented again in the Court at Kanauj and limitation was sought to be saved under Section 14 of the Indian Limitation Act, the question for consideration before the Kanauj Court was, as required in Section 14, Limitation Act, whether the plaintiff had prosecuted in good faith the suit in Aligarh Court and whether the Court at Aligarh was unable to entertain it on account of defect of jurisdiction or other cause of a like nature. Obviously, the considerations which would determine the question of limitation under Section 14 of the Limitation Act are materially different from the considerations which were before the Court at Aligarh.
Under Section 14 of the Limitation Act what has to be seen is the mental state of the plaintiff, whether he acted in good faith and diligently prosecuted the previous suit. It may be that the fact of there being or there not being an agreement, as alleged in the plaint, may also be taken into consideration but the ultimate factor which has to be determined is the good faith of the plaintiff. In the Courts at Aligarh the mere question was whether the plaintiff had been able to prove the facts as alleged. There is a substantial difference between the two propositions. It is one thing to say that the statement made by the plaintiff is not proved and it is another thing to say that he had deliberately made false statements in order to put the defendant to trouble. In a suit, the plaintiff may make a true and honest statement and yet he may not be able to prove it. The very fact that he was not able to prove a fact before a particular Court, does not necessarily lead to the conclusion that the statement of fact was false to the knowledge of the plaintiff. We, therefore, think that the lower appellate Court in this case was not right in drawing an inference of bad faith merely upon the findings arrived at by the Court at Aligarh.
6. Under Section 11 of the C. P. C., in order that the finding in the previous suit may be res judicata in a second suit, it is necessary that "the matter directly and substantially in issue has been directly and substantially in issue in a former suit etc." As stated above, the question directly and substantially in issue in this (second) suit is whether the plaintiff "has been prosecuting with due diligence other civil proceeding" namely, the suit at Aligarh. This question was not at all in issue in the former suit No bar under Section 11, C. P. C., therefore, exists against the Court in this suit coming to its own conclusion. Upendra Nath Bose v Lall. vide AIR 1940 PC 222.
7. Learned counsel for the respondent in this connection contended that even though the strict provisions of Section 11, C P. C., may not be applicable yet the general principles of res judicata which are wider would apply. We, are unable to agree with this contention either. In L. Jankirama Iyer v. P. M. Nilakanta Iyer, AIR 1962 SC 633, their Lordships of the Supreme Court considered the applicability of the general principles of res judicata to civil suits. It was observed :
"Where Section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata. We are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be the provisions of Section 11 and no other."
In this case, we are also dealing with a civil suit and, therefore, in order to bar a decision in the previous civil suit the case must be covered by the provisions of Section 11, C. P. C., otherwise this section would become nugatory. It was, however, contended by learned counsel for the respondent that the principles laid down in this case have been weakened by the observation of their Lordships of the Supreme Court in Gulabchand Chhotalal Parikh v. State of Gujarat. AIR 1965 SC 1153. Having read that case carefully, we are unable to accept this contention. In the later case. Their Lordships of the Supreme Court merely distinguished the previous case on the ground that in the previous case, both the previous suit in which decision had been given and the subsequent suit in which res judicata was pleaded, were civil suits and the observation made (by their Lordships of the Supreme Court) in 1962 case was applicable to that situation In the later ruling (Gulabchand's case AIR 1965 SC 1153) the previous decision had not been given in a civil suit and, therefore, Section 11 of the C. P. C., was not strictly applicable but the general principles of res judicata were held to apply.
Mr. Justice Subba Rao who gave the minority judgment did not agree with this distinction and was of the opinion that if the second civil proceeding in which res judicata was pleaded was a civil suit, it was enough to apply the principles laid down in 1962 case. But the majority held that the principles laid down in the case of AIR 1962 SC 633 (supra), would apply only where both, the earlier and the subsequent proceedings were civil suits. Mr. Justice Raghubar Dayal, who delivered the judgment for the majority observed in paragraph 43 of the report :
"The provisions of Section 11 will govern a previous decision in a suit barring a subsequent suit with respect to the same matter in controversy and general principles as of res judicata in such particular circumstances will neither be available to bar a subsequent suit nor will be needed It is in such context that the remarks of this Court in Jankirama Iver's case. AIR 1962 SC 633 are to be considered."
His Lordship then quoted from Jankirama Iyer's case. AIR 1962 SC 633 the following pas-sage.
"Where Section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata We are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be the provision of Section 11 and no other."
With regard to this remark, his Lordship said :
"The observations are to be read in the context in which they are made, the context being that the question of res judicata was being considered in connection with the decision in a previous suit. His Lordship then proceeded to consider a number of cases "on the applicability of the general principles of res judicata to suits when the previous decision is not in a suit but in proceedings."
This was for the purpose of coming to a conclusion that the general principles of res judicata were applicable where the previous decision had not been given in a civil suit, though a plea of res judicata was raised in a subsequent civil suit. We, therefore, think that in the present case, since both the proceedings are civil suits, the general principles of res judicata have no application and the case must be confined to the four corners of Section 11, C. P. C.
8. Having come to the conclusion that the decision in the previous suit at Aligarh was not binding in the present suit, the question whether the plaintiff had prosecuted the civil proceeding at Aligarh in good faith has to be decided on the evidence produced in this Court. The Court below did not apply its mind to this aspect of the matter. The evidence of both the parties is on the record on the basis of which the trial Court decreed the suit and we think that no useful purpose would be served in remanding the case for a fresh decision on the questions of fact to the lower appellate Court. Under the provisions of Section 103, C. P. C., this Court is entitled to look into the evidence and to give its own findings of fact. We, therefore, proceed to consider the evidence and to determine the questions of fact which have not been decided by the Court below.
9. The first question for determination obviously is the question of good faith of the plaintiff in prosecuting the civil suit at Aligarh. In the plaint, the plaintiff alleged that the contract had taken place at Harduaganj and the price was also to be paid at Harduaganj. This statement was made in the plaint when it was tiled at Aligarh and when the Munsif at Aligarh decided against the plaintiff, the plaintiff filed an appeal against that order but the lower appellate Court also did not accept the plaintiff's case. The plaintiff then presented the plaint in the Court of the Munsif. Kanauj and still he has maintained the very same allegations in the plaint. He has produced himself in evidence as P W 1 and has reiterated that the contract had taken place at Harduaganj.
As against that, the defendant has examined Chandragupta one of the partners of the defendant-firm He has stated in his examination-in-chief that the defendant had purchased the phials at Kanauj but he stated that he had not seen those phials at that time and had given a cheque for Rs. 2,700 at Kanauj. He then stated that his Munib told him subsequently that the phials were defective and he therefore, stopped payment of the money through the cheque This statement is definitely wrong. In the first place, it appears difficult to believe that the plaintiff had carried the glass phials worth Rs. 2,700 from Harduaganj to Kanauj when there was no previous agreement for the purchase of those glass phials and the defendant handed over a cheque for Rs. 2,700 at Kanauj without seeing the phials, which had been brought to his own place at Kanauj where he was purchasing the same.
10. In the second place the plaintiff has filed the original cheque and the bank memo refusing payment. This memo shows that the cheque was refused, after more than three months of the date of issue, on the ground that the defendant had no money in his account and not on the ground that its payment was stopped by the defendant.
11. The other defence put forward by the defendant that he had paid the full price of the glass phials, is also unbelievable If the Munib had informed him that the glass phials were not to be purchased and he had stopped payment of the cheque there seems to be no reason why the defendant would pay the whole price later on without any change of the phials The trial Court which had the advantage of seeing the demeanour of the defendanl has disbelieved him and his other witness Munib (D W 1) who only proved the account-books. The trial Court did not accept the defendant's version as reliable and we see no reason to take different view. We, therefore, hold that the plaintiff's version is reliable and at least it must lie held that he prosecuted the civil suit at Aligarh in good faith and is entitled to the benefit of Section 14 of the Limitation Act.
12. The next question for consideration is the amount to which the plaintiff is entitled It has already been said that the defendant pleaded payment. In order to prove payment, the defendant produced two witnesses, D. W. 1 (Rajaram) who was the Munib of the defendant firm and who proved the bahikhata entries of his own firm and D W 2 (Chandragupta) who was the proprietor of the firm. The statement of D. W. 2 has already been considered above We are unable to accept his version that without seeing the phials he had made the payment by cheque which he had subsequently stopped and then paid the whole amount in cash The statement of D. W. 1 cannot carry the defendant's case much further. He has merely proved the bahi khata entries and had no personal knowledge about the transaction. We are therefore, of the opinion that the plea of payment raised by the defendant is unreliable.
The plaintiff himself stated that the defendant had paid Rs. 1,506 only which he had credited in the plaint. The plaintiff is therefore, entitled to the balance of the principal amount, namely. Rs. 1,194. He claimed interest at six per cent per annum which is not excessive. He is, therefore, entitled to a sum of Rs. 160 by way of interest. The trial Court has also decreed the suit for these amounts. The plaintiff also claimed for Rs. 173-6-0 as expenses for travelling between Harduaganj. Kanauj and Aligarh several times in connection with the realisation of the amount. This amount has been disallowed by the trial Court and we find no sufficient evidence on the record to prove that this amount was spent by the plaintiff in connection with this transaction only. The plaintiff is therefore, entitled to a decree for Rs. 1,354 only.
13. The next point for consideration is whether the suit was barred by Section 69 of the Indian Partnership Act. The plaintiff has alleged that the firm which sold the goods to the defendant had been dissolved before the suit and this amount was assigned to the plaintiff for realisation. The plaintiff has proved this fact by his own statement. The defendant has not proved anything to the contrary. Section 69(3) of the Indian Partnership Act makes an exception in favour of a suit for realising the assets of a dissolved firm. This suit was therefore, not barred by Section 69 of the Indian Partnership Act.
14. The result therefore, is that the plaintiff's appeal is allowed, the decree of the lower appellate Court is set aside and that of the trial Court is restored with costs throughout.