JUDGMENT
R.L. Anand, J.
1. By this judgment I will dispose of Regular Second Appeal No. 868 of 1980 and Cross-Objections filed by the plaintiff under Order 41 of Rule 22 of the Code of Civil Procedure in the above Regular Second Appeal, as the common question of law and fact, is involved in both the matters.
2. The brief facts of the case are that Shri Ram Parshad (deceased) sole proprietor of Firm known as Madho Prashad Ram Prashad, filed a money suit for a sum of Rs. 17,325.56 being the amount payable by the defendants M/s Mehta Charan Dass and Company on account of the pronote and receipt executed on 31.3.1973 and it was alleged by the plaintiff that he deals in paddy and carries on his business in the name of Firm Madho Prashad Ram Prashad and he is the sole proprietor of the said firm. The defendants had been purchasing paddy on credit from the plaintiff with a promise to pay its price with interest at the rate of 1% per month. On 31.3.1973, after going through the account bills and sales tax form etc, a sum of Rs. 20,594.85 as principal and interest, was due to the plaintiff from the defendant. On the request of the defendants, the plaintiff gave up Rs. 600.29 out of the balance amount of Rs. 19,994.56 and the defendants executed pronote and receipt for a sum of Rs. 13,452.56. The defendants also issued a postdated cheque for a sum of Rs. 6,542/-. The defendant agreed to pay interest on the promote amount at the old agreed rate. Thereafter, the defendants paid a sum of Rs. 1,000/-on 5.12.1973. However, the defendants did not pay the remaining amount of Rs. 13,452.56 as principal and Rs. 3,763.60 as interest in spite of the repeated demands. Hence the suit.
3. Notice of the suit was given to the defendant who took the objections that the suit is barred under Order 2 Rule 2 C.P.C.; that the promote has not been properly stamped; that the suit is barred by the principle of res judicata and that the suit is liable to be stayed under Section 10 of the Civil Procedure Code. On merits, it is alleged that no account was gone into by the plaintiff on 31.3.1973 and in fact, the accounts were gone through by the parties in July, 1973 at Ambala and that a sum of Rs. 13,452.56 including interest was found due to the plaintiff. At the instance of the plaintiff a pronote for a sum of Rs. 13,452.56 was executed by the defendants. The plaintiff was insisting for making some cash payment, A post-dated cheque dated 30.12.1973 for a sum of Rs. 6,542/- was issued for the payment of some interest and principal amount. Thereafter a sum of Rs. 1,000/- was paid and that as the plaintiff did not issue receipt for this amount of Rs. 1,000/- the payment of the aforesaid cheque was stopped.
4. The plaintiff filed replication in which he reiterated the allegations of the plaint by denying those of the writ statements.
5. On the pleadings of the parties the following issues were framed:-
1. Whether the pronote in question is without consideration as alleged? OPD
2. Whether the suit is barred under Order 2 Rule 2 C.P.C.? OPD
3. Whether the suit is barred by the principles of res judicata! OPD
4. Whether the suit is liable to be stayed under Section 10 C.P.C.? OPD
5. Relief.
6. The parties led oral as well as documentary evidence in support of their case and on the conclusion of the trial the suit of the plaintiff was decreed and a money decree for a sum of Rs. 17,315.56 was passed against the defendants with proportionate costs and it was further held that plaintiff will be entitled to claim future interest on the principal amount from the date of decree till its payment at the rate of 6 per cent per annum. This judgment was given by the trial Court vide judgment and decree dated 15.11.1978.
7. Aggrieved by the judgment and decree, the defendants field the first appeal before the Additional District Judge, Ambala, who vide impugned judgment and decree dated 24.10.1979 modified the judgment and decree of the trial Court and gave a rebate of Rs. 1,000/- to the defendants. The rest of the suit of the plaintiff-respondent was decreed. In this manner, the defendants have filed the Regular Second Appeal while the plaintiff has filed the Cross-objections.
8. I have heard Shri D.S. Giri, Advocate appearing on behalf of the appellants and Shri Padamjit Singh, Advocate, appearing on behalf of the respondents in the main appeal and in support of the cross objections.
9. In this case, the execution of the pronote and receipt has not been denied by the defendants. In these circumstances, the onus is upon the defendants to show that the pronote was executed without consideration.
10. It is proved on the record that the parties had the dealings earlier and the pronote in question was executed after settling the accounts. In this view of the matter, it has to be presumed that there was a part consideration and in view of that consideration the pronote was executed by the defendants in favour of the plaintiff. The next defence of the defendants is that on the basis of post-dated cheque the plaintiff filed a suit and the said suit has been dismissed up to the appellate court and in these circumstances the present suit of the plaintiff is barred by the principle of res judicata under Order 2 Rule 2 C.P.C. The arguments is not acceptable to this Court for the reasons that the cause of action on the cheque was totally different. As per the allegations of the plaintiff, the defendant issued a post-dated cheque to ensure the payment. The cause of action in the present suit was the pronote itself while in the earlier suit the cause of action was the issuance of the cheque. Both the causes of action were different. If the cause of action of both the suits are different then the principle of res judicata under Order 2 Rule 2, C.P.C. will not come into effect and in this regard reliance has been rightly placed by the first appellate Court on
A.I.R. 1949 Privy Council 78, wherein it was held as under:-
“The correct test in cases falling under Order 2 Rule 2 C.P.C is whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit. The cause of action means every fact, which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. If the evidence to support the two claims is different, then the causes of action are also different. The causes of action in the two suits may be considered to be the same if in substance they are identical. The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour. Where the facts which would entitle the plaintiff, in their new suit to recover property Y, to establish their title are substantially the same as those alleged in their former suit to recover property X, the causes of action in the two suits are identical and the plaintiffs are barred by reason of Order 2 Rule 2 from maintaining the new suit. Where the same cause of action applied to the recovery of properties X and Y but the plaintiff only sued for property X in the former suit, it cannot be said that he did not omit to sue for property Y in such suit, merely because he attempted to include such property in that suit by means of an amendment of the plaint but was not allowed to do so.”
11. Reliance was further rightly placed by the first appellate Court on A.I.R. 1949 East Punjab 243, Duni Chand v. Jagdev, in which it was held as under:-
“In order to find out whether the causes of action are identical or distinct and separate, the only test that has to be applied is whether in order to get relief in the two suits the same bundle of essential facts had to be alleged and proved by the plaintiff. If the answer to this question is in the affirmative the causes of action must be held to be identical. If the answer to this question is in the negative the causes of action cannot be said to be identical. In case of co-sharers suing for their share of the rents and profits of the joint property realised by the co-sharers in exclusive of possession of such property the cause of action consists of their title as cosharers and the receipt by the co-sharer in possession of rents and profits in excess of this share. In a suit for joint possession the cause of action will consist of the title to the plaintiff and the repudiation of such title by the co-sharer in exclusive possession. In a suit for partition the cause of action will consist of the title of the plaintiff and the refusal by the defendants to divide the property out of the court and give the plaintiff separate possession of a parcel of the joint property proportionate to his share. In a suit for recovery of the plaintiff’s share of the rents and profits-for the period subsequent to the one for which the previous suit was brought the cause of action will consist of the plaintiffs title and the realization by the defendant of his share of the rents and profits for the said period. Obviously, the causes of action in the four cases are distinct and separate.
Hence, where the co-sharers bring only a suit for their share of the rents and profits of the joint property realized by the co-sharer in exclusive possession of such property, and subsequent action brought by them either for partition of the joint property or for joint possession or for their share of the profits for a subsequent period cannot attract the application of Order 2 Rule 2.”
In order to decide whether the bar created by Order 2 Rule 2, applies to a certain suit or not, and whether the causes of action for the two suits can be said to be identical, the parties’ description of the nature of the claim and their description of their legal position cannot be regarded as conclusive. It is the effect and the substance of the claim and the true juridical nature of the relationship existing between the parties that has to be taken into consideration.”
12. Reverting to the cross-objections it has been submitted by the counsel appearing on behalf of the plaintiff-respondent that the first appellate Court has unnecessarily and wrongfully gave the adjustment of
Rs. 1,000/- to the defendant. I do not subscribe to this argument because the plaintiff himself has admitted about the receipt of the amount of Rs. 1,000/- and in these circumstances, it was incumbent upon the plaintiff to give the adjustment of this amount but the admission is a conclusive proof of fact unless successfully withdrawn or otherwise proved erroneous. The plaintiff has admitted in clear words in the plaint as well as in his statement that he was liable to adjust the amount of Rs. 1,000/- towards the total amount due from the defendants.
13. In this view of the matter, I do not see any merit in the appeal as well as in the Cross-objections and the same are hereby dismissed with no order as to costs.