1. The plaintiffs, as owners of the firm Sonlal-Hansraj, sued to recover the price of goods supplied. The suit was dismissed under Section 69(2) of the Partnership Act, on the ground that the firm was unregistered. The firm was then registered, and a second suit was brought on the same cause of action. That suit was dismissed on the principle of res judicata.’ The plaintiffs, who challenge that’ finding in revision, contend that the question whether the goods were supplied and not paid for was never decided in the previous suit and that therefore this second suit will lie. The defendant relies on the principle contained in the maxim nemo debet his vexari pro eadem causa but the same matter is not being tried twice. All that was settled in the first suit was that Section 69 of the Partnership Act, prohibited the institution of such a suit. The effect of the dismissal of an action in England is stated at p. 26, Edn. 3, of the Law of Estoppel by Everest and Strode as follows:
In order to create an estoppel, the adjudication itself must be a final one, and the matter itself must not only have been determined but controverted as well. The rule in chancery was that an order dismissing an action was a bar to a fresh action for the same matter, if the dismissal was upon hearing and was not in terms directed to be without prejudice, and if the Court determined that the plaintiff had no title to the relief sought; so that in pleading a former suit as a bar, it was not sufficient to show that the bill was dismissed; but you must plead further that which will show that the same matter in dispute in the subsequent suit was res judicata in the first;
and in para. 686 of Caspersz on Estoppel, Edn. 4, it is stated:
It is not enough that the former suit has been heard and determined. The cause of action must be heard and determined.
2. Again there is to be found in the same paragraph the observations of Phear, J. in 21 WR 1051:
It seems to be clear then that the objection to a suit on the ground of multifariousness or misjoinder of causes of action is an objection to the hearing of the suit; and if it prevails at whatever time it has the effect of preventing a determination…. The fact that the Court has, in form, passed a decree dismissing the suit, does not alter the character of the determination.
3. Here it seems to me that Section 69(2) of the Partnership Act, prevented the institution of the suit, and that therefore there was no determination of the subject matter of that suit.
4. An opinion was expressed in AIR 1935 Lah 8932 and 7 Rang 296,3 that in such circumstances a second suit would lie, and, though the decision of that point was not necessary in those cases, it seems to me, with due respect, that opinion is correct. I hold therefore that the present suit is not barred by the principle of res judicata, and it is accordingly remanded to the Small Cause Court for trial. The costs of this application will abide the event. Counsel's fee Rs. 15.
S.C/D.S
5. Case remanded.