Back
1968 Supreme(AP) 63
Andhra Pradesh High Court
Judges : KUPPUSWAMY, P.JAGMOHAN REDDY
Katta Subbarao (died) by L.Rs. - Appellant
Versus
Pokuri Sri Ramalu - Respondent
Decided On : 03-28-68
A plea of res judicata cannot be raised for the first time in an appeal, unless it is based on facts which are admitted or which have been proved beyond controversy.
Headnote:
PARTNERSHIP - SUIT FOR PARTITION AND ACCOUNT - LEASE OF PARTNERSHIP PROPERTY - LIABILITY OF LESSEE TO RENDER ACCOUNT - RES JUDICATA - PLEA OF - WHEN TO BE RAISED - LIMITATION - ARTICLE 89 OF THE LIMITATION ACT, 1908 - APPLICABILITY.
Fact of the Case:
The plaintiff filed a suit for partition and separate possession of 1/8th share in a partnership mill and for rendition of account by the first defendant of the income from the mill from a specific date. The first defendant contended that he was not the lessee but bid at the auction on behalf of a partnership firm of which he and the other defendants were partners and therefore, the partnership firm alone was liable for rent. He further contended that he was not the managing co-owner and was not therefore, liable to account. He also raised the plea that the suit was barred by limitation.
Finding of the Court:
The trial court held that the first defendant was the lessee and was also the managing co-owner and that the suit was not barred by limitation. The first defendant appealed to the High Court, which agreed with the findings of the trial court and dismissed the appeal with costs. The first defendant appealed to the Supreme Court.
Issues: 1. Whether the first defendant was the lessee or the partnership firm was the lessee? 2. Whether the first defendant was the managing co-owner? 3. Whether the suit was barred by limitation? 4. Whether the plea of res judicata could be raised for the first time in the appeal?
Ratio Decidendi: 1. The Supreme Court held that the concurrent findings of fact of the trial court and the High Court on the questions whether the first defendant was the managing co-owner and whether he was lessee should not be interfered with. 2. The Supreme Court also held that the plea of res judicata could not be raised for the first time in the appeal, as it was not raised in the written statement and no reason was given as to why the written statement was not amended or an additional written statement was not filed raising the plea of res judicata during the pendency of the suit. 3. The Supreme Court further held that the suit was not barred by limitation, as the account was asked for, for the first time by notice, within three years of the filing of the suit.
Final Decision: The Supreme Court dismissed the appeal with costs.
( 1 ) THE first defendant in O. S. No. 54of 1955 on the file of the District judge, Eluru preferred the above appeal against the judgment and decree of krishna Rao, J. , in A. S. No. 4 of 1961. During the pendency of this appeal, the appellant died and his legal representatives have been brought on record.
( 2 ) THE suit was filed by the first respondent on 4th November, 1955 for partition and separate possession of 1/8th share in Sri Ramakrishna Oil Mills, Eluru (hereinafter referred as the suit mill ) and for rendition of account by the first respondent of the income from the suit mill from 6th January, 1946 on the following allegations: the plaintiff and defendants 1 to 3 are co-owners and the plaintiff being entitled to 1/8th share, first defendant to share and the second defendant to 1/4th share and the 3rd defendant to 1/8th share respectively. Due to differences between them they agreed to lease out the suit mill by auction gmong themselves on 6th January, 1946, and the first defendant was the highest bidder at Rs. 20,001 per year. The first defendant accordingly became the lessee of the suit mill. He was also the managing co-owner and as such Was liable to render to the co-owners the account of the rents and profits.
( 3 ) THE defence of the first defendant material to the appeal was that he was not the lessee. He bid at the auction not for himself but on behalf of the 6th defendant- firm of which he, 4th and 5th defendants were the partners and therefore, the 6th defendant alone was liable for rent. He further contended that he was not the managing co-owner and was not therefore, liable to account. He raised also the plea that the suit was barred by limitation.
( 4 ) THE trial Court on a consideration of the evidence held that the first defendant was the lessee and was also the manging co-owner and that the suit was not barred by limitation. He therefore, passed a preliminary decree for partition and delivery of possession of plaintiff s 1/8th share in the suit mill and directed the first defendant to render account of the suit mill business from 6th January, 1946, until 25th May, 1957, the date on which the possession of the suit mill was taken over by the commissioner appoint3d by the Court.
( 5 ) THE first defendant, thereupon preferred A. S. No-4of 1961 to this Court. He did not dispute the right of the plaintff to a decree for 1/8th share and for recovery of possession, but questioned his liability to render account. In addition to the pleas raised in the Court below that he was not a co-owner, that the 6th defendant, and not he was the lessee and that the suit was barred by limitation, he attempted to raise a further contention, namely, that the finding in two prior suits, O. S. 66/61 and 93/52 on the file of the Court, Eluru that the 6th defendant was the lessee and not the first defendant operated as res judicata and it was. therefore not open to the lower Court to find that the first defendant was the lessee. He also urged that certain directions given by the lower Court with reference to the rendition of accounts were erroneous and the interest ought to have been awarded at 6 per cent.
( 6 ) OUR learned brother, Krishna Rao, J. , after consideration of the evidence agreed with the findings of the lower Court that the first defendant was the co-owner and was also the lessee and that the suit was not barred by limitation. He gave certain directions regarding account and also held that the interest should have been awarded at 6 per cent per annum, only from the date of suit. He however, refused to permit the appellant to raise the plea of res judicata which had not been raised in the lower Court. In the result subject to the modifications relating to the directions regarding accounting and interest he dismissed the appeal with costs. The present Letter Patent Appeal is directed againt the said judgment and decree.
( 7 ) WE are not inclined to interfere with the concurrent finding of fact of our l
