Coutts-Trotter, J.:— Without any disrespect to Mr. Narayana Murthi's arguments, to my mind, his case is absolutely unarguable. I do not so much rely upon the decisions cited, which are not wholly reconcilable, although Masilamania Pillai v. Thiruvengadam Pillai(1) is an authority of this Court which is dead against him. To my mind we have only to look at the facts of the case and the words of the Code of Civil Procedure to see that the result arrived at by the lower Court, which is obviously in accordance with common sense, is also in accordance with the words of the Code. I think the appeal fails and must be dismissed with posts.
Seshagiri Aiyar, J.:— I have great sympathy with Mr.
2. Narayana Murthi's client. He had a decision in his favour by the Subordinate Judge in the previous suit, which was reversed by the High Court on a technical ground; this Court might have given him leave to amend his plaint but that was not done. Nonetheless I am convinced that upon Section 11 of the CPC, and upon the authorities the appellant has no case. In Masilamania Pillai v. Thiruvengadam Pillai the present Chief Justice held under similar circumstances that the plaintiff could: not be allowed to litigate his title over again. No doubt there is a reservation made in that case that if the claims should be mutually destructive, or if there will be any embarrassment in joining the rights, the two titles can be separately litigated. I do not think that in the present case it can be said either that the titles are mutually destructive or there will be any embarrassment in joining them. To aooede to the appellant's contention would encourage slackness in the pleadings and want of definiteness and care in adducing evidence. The plaintiff did not set up this title which he could have brought forward as an alternative basis of his claim on the last occasion; he cannot therefore litigate it now. This case is, I think, practically concluded by the decision of the Privy Council in Woomatara Debea v. Unnopoorna Dassee(2). In that case the Judicial Committee quote with approval the observations of Lord Westbury in a previous case. The learned Lord in the latter case pointed out that if a defendant has two grounds of attack to a claim made by the plaintiff and wilfully chooses to keep back one of the grounds of attack, he is not entitled to put forward the omitted ground in a later suit. The Judicial Committee applied that principle enunciated with regard to a defendant to the case of a plaintiff. On that authority this case must be regarded as having been rightly decreed by the Court below. The observations of the learned Judges of this Court in Ramaswami Ayyar v. Tythinatha Ayyar(3), where they seem to say that a prior suit as a reversioner would not conclude a subsequent suit as owner, seems to me to be opposed to the decision of the Judicial Committee in Woomatara Debea v. Unnopoorna Dassee. Moreover it was an obiter dictum which was not necessary for the decision of the case. I therefore agree that the Courts below are right in the conclusion that the suit is barred by res judicata. The appeal should be dismissed with costs.
S.N/R.K
3. Appeal dismissed.