PART II. It is not what the Judge may say in his judgment, but what is directed by the Defences. decree, is res judicata;* but in order to determine what the decree really decides, it is essential to see what were the rights in dispute between the parties.† Div. I Suits on Contract. The decision relied on must be that of a Court competent to try the subsequent suit ; a decree of a Court not of competent jurisdiction is no bar.§ Where the suit is a continuing one, as a suit for an account, the previous suit will be no bar.|| Foreign Judgments-When a Bar to Suit in India.-No foreign judgment shall operate as a bar to a suit in British India : (a) If it has not been given on the merits of the case; (c) If it is in the opinion of the Court before which it is produced contrary to (d) If it has been obtained by fraud; (e) If it sustains a claim founded on a breach of any law in force in British India. In a suit against a native of British India not residing in the foreign country, upon a cause of action which arose in British India, there is no duty in the defendant to attend the foreign Court and defend the suit, and consequently an ex-parte judgment of such foreign Court imposes no duty on the defendant to pay the amount decreed so as to bar a suit in British India. Such a case comes under clause b of section 14 of the Civil Procedure Code.** Foreign Judgments-Essential Allegations.-In pleading a foreign judgment in bar of a suit in India a general averment of jurisdiction is sufficient, as, by explanation vi. of section 13 of the Civil Procedure Code, the judgment duly authenticated is presumptive evidence that the Court which made it had competent jurisdiction, unless the contrary appear on the record. Mohan Lal v. Ram Dial, I. L. R., 2 All. 843; Devarakonda Narasamma v. Devarakonda Kanaya, I. L. R., 4 Mad. 134; Anusuyabai v. Sakaram, I. L. R., 7 Bom. 464; see also per Sir Barnes Peacock in Soorjomonee Dayee v. Suddanund Mohapatter, 12 B. L. R. at p. 304; Manappa Mudali v. S. T. McCarthy, I. L. R., 3 Mad. 192. + Robinson v. Duleep Singh, 11 Ch. Div. 798 at p. 813. Civil Procedure Code, s. 13; Misir Raghobardial v. Sheo Baksh Singh, I. L. R., 9 Cal. 439. § Poholi Mullick v. Fukeer Chunder Patnaik, 22 W. R. 349; Chunder Narain Mojoomdar v. Prithanuud Asrum, 12 W. R. 290; Mussamut Ranee Gunesh Kooer v. Mussamut Oomdut Oonnissa Begum, 6 N.-W. P. 77; Kalka Parshad v. Kanhaya Singh, 7 N.-W. P. 99. Roy Dinkur Doyal v. Sheo Golam Singh, 22 W. R. 172. ** Hinde & Co. v. Ponnath Brayan, I. L. R., 4 Mad. 359. Div. I. When Plea of Res Judicata may be Taken.-Where the plea of res PART II. judicata was not raised until after all the evidence had been taken, it was held that Defences. the Court should consider it ; and even when this plea had not been raised either in the Court of first instance or in first appeal, if raised in second appeal it must be considered and determined either upon the record as it stands, or after a remand for findings of fact.t Suits on Contract. Form No. 361. INFANCY OF PLAINTIFF. That the plaintiff is not of the age of eighteen years (or at the commencement of this suit the plaintiff was not of the age of eighteen years), and has no guardian appointed herein. Practice.-Every suit by a minor shall be instituted in his name by an adult person, who, in such suit, shall be called the next friend of the minor, and may be ordered to pay any costs in the suit, as if he were the plaintiff. As to who is entitled to institute or defend a suit on behalf of a minor, see the chapter herein, entitled "Minors," page 13. Where there is no guardian appointed under any local law, the Court may, under section 445 of the Civil Procedure Code, appoint any person of sound mind and full age, whose interest is not adverse to that of the minor, and who is not himself a defendant, to be the next friend of the minor. Form No. 362. That the cause of action set forth in the plaint did not accrue within years before commencement of this suit; and the plaintof Schedule II. of Act iff's claim is therefore barred by clause XV. of 1877. Construction of Limitation Acts.—A Limitation Act, being restrictive of the ordinary right to take legal proceedings, nust, where the language is ambiguous, be construed strictly, i.e., in favour of the right to proceed.§ Statutes of Limitation are in their nature strict and inflexible enactments, and ought to receive such a construction as the language in its plain meaning imports; and where the * Run Bahadoor Singh v. Lucho Kooer, I. L. R., 6 Cal. 406. + Muhammad Ismail v. Chattar Singh, I. L. R., 4 All. 69. Civil Procedure Code, s. 440. § Umia Shankar Lakhmiram v. Chhota Lal Vajeram, per Westropp, C.J., I. L. R., 1 Bom. 19 at p. 22; Balvantrav v. Parshotam Sidheshvar, 9 Bom, 99 at p. 111. Luchmee Buksh Roy v. Runjeet Ram Panday, 13 Beng. P. C. 177; 20 W. R. 375; see also Syed Mahomed Afzul v. Kanhya Lal, 2 W. R. 263. PART II. language of an Act of Limitation specifies the particular cases for which a period Defences. of limitation is provided, the Court ought not to interpret that language so as to include cases not falling within the strict meaning of the words used.* Div. I. Suits on Contract. Application of Limitation Acts.-The applicability of particular sections of the general statute of limitation must be determined by the nature of the thing sued for, and not by the status, race, character, or religion of the parties to the suit. The period of limitation within which the claim is barred must be fixed and uniform, by whomsoever that claim is preferred or resisted.† No Court has power to extend by indulgence the period of limitation, but when it is shown that a remedy is barred by limitation, it has only to apply the law, and refuse the remedy;‡ and this although limitation has not been set up as a defence,§ and at any stage of the proceedings. It is the duty of the plaintiff, if his cause of action arose beyond the time ordinarily allowed for instituting his suit, to state in his plaint the grounds on which exemption from the Limitation Law is claimed, and the Court must reject the plaint if it is barred by lapse of time.|| Consent of Parties.—When a cause of action has once accrued the prescribed period of limitation cannot be extended even on the agreement of the parties.¶ Defendants Not Bound by Limitation Acts.-The Limitation Act, 1871, does not in terms apply to defendants; and it does not follow that a defendant cannot set up a right by way of defence which he would be precluded by the Limitation Act from setting up as a plaintiff by way of subtantive claim.** Doctrine of Laches and Acquiescence.-The equitable doctrine of laches and acquiescence does not apply to suits for which a period of limitation is provided by the Limitation Act;†† the Courts of this country have not power to refuse relief on the ground of mere delay when plaintiff establishes a right not affected by limitation.‡‡ But where there is more than mere laches, where there is conduct or language inducing a reasonable belief that a right is foregone, and the party who acts upon the belief so induced, and whose position is altered by this belief, is entitled in this country, as in other countries, to plead acquiescence, and the plea, if sufficiently proved, ought to be held a good answer to an action, although * Ram Sunkar Bhadoory, In re, 3 C. L. R. 440. + Maharana Futtehsangji v. Dessai Kullianraiji Hekoomutraiji, 13 Beng. C. P. 254, at p. 265; 21 W. R. 178. Sadbo Singh v. Musumut Kishnee, 3 N. W. P. 318. § Limitation Act, 1877, s. 4. See ss. 50 and 54, cl. c, C. P. C. East India Company v. Odichurn Paul, 5 M. J. P. 43. ** Ram Narain v. Poolin Beharey, 2 C. L. R. 5. ++ Ram Rau v. Raju Rau, 2 Mad. H. C. R. 114; Peddamuthulaty v. N. Timma Reddy, 2 Mad. H. C. R. 270; Taruck Chunder Bhattacharjee v. Huro Sunkar Sandyal, 22 W. R. 267; Sheikh Allij Hossein v. Sheikh Muzhur Hossein, 4 C. L. R. 577. ‡‡ Ramphul Sahoo v. Misree Lal, 24 W. R. 97. Div. I. the plaintiff may have brought his suit within the period prescribed by the law of PART II. Imitation. This is also the principle followed in England. But to constitute a Defences. bar by acquiescence both parties must be acquainted with all the material facts, and the conduct of the party entitled to offer opposition to the act of the other must be such as to give rise to a reasonable belief of his consent, and the other must have Contract. been induced thereby to do something from which he might otherwise have abstained. Suits on Form No. 363. MISJOINDER OF CAUSES OF ACTION. That several causes of action have been improperly united (state how). Practice.-An objection for misjoinder of causes of action must be taken in the Court of first instance.§ For the kind of claims which may be joined with a suit to recover immoveable property, or for declaration of title to immoveable property, see section 44 of the Civil Procedure Code; all other claims may be joined in one suit. The Court may, however, order separate trials when it considers that they cannot be conveniently tried together; but this does not mean that the plaintiff must then file separate plaints in each case separately tried.¶ The defendant may apply, at any time before the first hearing, or, where issues are settled, before any evidence is recorded, for an order confining the suit to such of the causes of action as may be conveniently disposed of in one suit.** Form No. 364. MISJOINDER OF PARTIES. That A B is improperly made a plaintiff (or defendant) in this suit (state why). Practice.-No suit shall fail by reason of misjoinder of parties.†† The Court has, under section 27 of the Civil Procedure Code, a discretion, where there has been a bonâ fide mistake, to substitute or add a party plaintiff; and under section 32 the Court may order the name of any party, whether plaintiff or defendant, improperly joined, to be struck out. * Uda Begam v. Imam-ud-din, I. L. R., 1 All, 82. † Archbold v. Scully, 9 H. L. 383. ‡ See Darby and Bosanquet, pp. 351, 352; Banning, pp. 246, 247. § Dhondiba Krisnaji Patel v. Ram Chandar Bhagvat, I. L. R., 5 Bom. 554. || Civil Procedure Code, s. 45. Musumut Rutta Bebee v. Dumree Lal, 2 N.-W. P. 153. **Civil Procedure Code, s. 46. ++ Civil Procedure Code, s. 31, F. P.--89 PART II. Div. I. Suits on Form No. 365. That the true name of the plaintiff (or of defendant) is and ever Contract. has been and not in which name he sues (or is sued). Practice.-Misnomer of a plaintiff or defendant must be pleaded, whether the party be an individual or a corporation, otherwise a mistake in the name will be considered as waived. Misnomer of Defendant.-The description contemplated by the Code includes all the titles by which the party is generally known; and if a party, from obstinacy, or pique, or anything in fact but a bona fide dispute, as to the right to a title, persistently refuses to give his adversary that title by which he is generally recognized, the Court ought not to permit, nor sanction, that species of insult. When the defendant objected that his titles were not set forth, and asked that he might be described as in the Government Gazette, "The Honorable Maharajah Meerja Vijaya Rama Gujapati Raz Manee Sultan Bahadur, Guru of Vizianagram.” and the plaintiff was granted a week to amend, but did not, it was held by the Privy Council that, with the exception of the word "Honorable," which seemed less a matter of description than an honorary distinction as applied to members of Council, the Judge was right in insisting on the titles, and in rejecting the plaint on noncompliance, as the titles could not be rationally disputed. In this case their Lordships disapproved of the ruling in Kishen Chand Goleecha v. Meghraj Kobhria Roy Bahadoor,† in which the High Court at Calcutta refused to insist on the insertion of the words "Roy Bahadoor." with the plaintiff in said lands, and necessary parties to this suit, Form No. 367. NON-JOINDER OF JOINT PROMISEE. That the contract (or other cause of action) mentioned in the plaint was made with said A B, plaintiff, and one C D, jointly. Form No. 368. THE SAME-ANOTHER FORM. 1. That the goods described in the plaint were sold by plaintiff and one C D as partners under the name of AB & Co. * Sri Raja Seta Rama Krishna v. Sri Raja Vijaya Rama Gajapaty, 3 Mad. 31; 18 W. R. 301. + 12 W. R. 450. |