Judgement

Appeal from a judgment and decree of the Judicial Commissioner (March 31, 1914) affirming the decree of the District Judge of Quetta Pishin.

The suit was instituted by the respondent under the circumstances stated in the judgment of their Lordships.

Both Courts in India held that the issue raised by the appellant was res judicata under s. 10 of the British Baluchistan Regulation IX. of 1896, which is set out in the judgment.

1917. June 22, 25. Dunne, for the appellant. The merits of the issue of fraud were not entered into upon the appeal to the Judicial Commissioner. The matter, therefore, was not "finally decided" Sheosagar Singh v. Sitaram Singh (( 1897) L. R. 24 Ind. Ap. 50.); Gungabishen Bhugut v. Roghoomath Ojha (( 1881) I. L. R. 7 Calc. 381.); Chunder Coomar Mitter v. Sib Soondari Dasee. (( 1882) I. L. R. 8 Calc. 631) [Reference was also made to the Codes of Civil Procedure, 1882, s. 13, and 1908, s. 11.]

Dube, for the respondent. The matter " finally decided" in the previous suit was that the bond was binding until the deed was set aside. The same issue in substance is now raised and the appellants are estopped Soorjomonee Dayee v. Suddamund Mohapatter. (( 1873) L. R, Supp. Ind. Ap. 212, 218.)

Dunne replied.

July 27. The judgment of their Lordships was delivered by

MR. AMEER ALI The only point for determination involved in this appeal turns upon the meaning to be attached to the words " finally decided " in s. 10 of the British Baluchistan Regulation IX. of 1896. That section provides as follows " A Court shall not try any suit in which the matter in issue has been heard and finally decided by a Court of competent jurisdiction in a former suit between the same parties in the same rights, or between parties under whom they or any of them claim.”

A short statement of the facts will explain how the question has arisen.

The parties to the litigation carried on certain business in British Baluchistan in partnership with two other men; in July, 1910, they agreed to dissolve the partnership ; according to the plaintiff, Ganesh Dass, accounts were duly adjusted, when a sum of over Rs.9900 was found due from the defendant, Ashgar Ali Khan; on July 12 a formal deed of dissolution, by which the defendant agreed to execute a bond in favour of the plaintiff for the amount stated, was executed by the four partners. On the day following the defendant executed the bond on which the present suit is brought. The defendants case is that he signed the deed of dissolution which embodied the settlement and executed the bond, agreeing to pay the amount alleged to be due from him, on the fraudulent representation of the plaintiff that the adjustment of accounts was correctly made, and on the assurance that should the defendant, upon the examination of the accounts at his leisure, discover any mistakes they would be rectified. The defendant alleges that it was on the faith of these representations he executed the two documents. He further alleges that some days after the execution of the deed of dissolution and the bond in suit he had an opportunity to examine the statement of account, and that he found it to be wholly incorrect and misleading; that thereupon he called upon the plaintiff and the other partners to make a proper adjustment, undertaking to pay any amount that might on such further examination be found due from him. The plaintiff, Ganesh Dass, refused to accede to the proposal, and thereupon the defendant brought a suit on July 22, 1911, in the Court of the Assistant Commissioner of Quetta for a cancellation of the bond of July 13, 1910, on the ground that he was induced to execute it by the fraudulent representations of the present plaintiff. The written statement of Ganesh Dass is not on the record of this appeal, but it appears from the judgment of the Judicial Commissioner in that case that among other pleas Ganesh Dass urged that, the bond being based on the dissolution deed and being merely executed to record the m