Akber Merali Alibhai v. Fidahussein and Comp. Ltd. and others Civ. Case 41-D-67, 3/9/69, Duff J.

Akber Merali Alibhai v. Fidahussein and Comp. Ltd. and others Civ. Case 41-D-67, 3/9/69, Duff J.

An earlier suit between the same parties was dismissed in the defendant’s favour on a preliminary point raised that as the plaintiff was a partner he could not sue his co-partners as debtors until such time as the partnership had been dissolved and accounts taken. The plaintiff then instituted the present suit seeking, inter alia, a declaration that the partnership be entered into with the defendants be dissolved. The defendants argued that as the present claim could have been raised in the earlier proceedings even as an alternative, the claim for dissolution of the partnership was barred by Section 9 of the Civil Procedure Code, as being res judicata. The plaintiff argued that the earlier suit referred to a claim for salary, while the present one called for dissolution of the partnership and the taking of accounts, and the issue was therefore not res judicata.

Held: (1) “The Indian authorities relied on by Mr. Lakha support the contention that where a previous suit is dismissed a subsequent suit on the same cause of action is not maintainable. They also indicate that parties to litigation are required to bring forward their whole case and are not permitted, except under special circumstances, to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest (in the earlier case) but which was not brought forward through negligence, inadvertence or even accident (vide Henderson v. Henderson, 67 E.R. 313 at P. 319).” With these principles I respectfully agree.” (2) “Turning to the allegations which are disclosed in the pleadings, it appears that there is a dispute as to whether the partnership was dissolved or not. If the partnership was dissolved before the 17^th July 1965, when the plaint was filed in the earlier suit, then I would be inclined to the view that the contention of re judicata would succeed. Assuming for the moment that it was not dissolved, was the plaintiff obliged in the earlier suit to seek dissolution of the partnership and an enquiry into accounts etc.? Was he not entitled, if he so wished, to allow the partnership to continue and to seek an account without asking for a dissolution of the partnership? Certainly under the provisions of section 194 of the law of Contract Ordinance, Cap. 433, he could have sought relief without applying for dissolution which he is now seeking and it is this view which impels me to hold that without going into evidence it would not be proper to uphold the objection raised on behalf of the defendants.” (3) Action to continue.