Case: Shankar Sitaram Sontakke And Another Vs. Balkrishna Sitaram Sontakke And Others

family business would be either altogether stopped after the 31st March 1946, or would be run either by the arbitrators or the Commissioners and the profits accruing there from would be deposited in court for distribution among the parties according to their shares.This application was made on November 22, 1947. His Pleader, however, stated on April 6, 1948:"The application is abandoned by the applicant as he wishes to pursue his remedy by way of an independent suit for the grievance in the application",and the court passed the order : "The application is disposed of as it is not pressed". The learned Judges of the High Court in referring to this application observe thus:"It is obvious therefrom that really speaking the idea of the profits of several businesses after the 1st of April 1946 was present to the minds of the parties; but the parties did not care to ask that accounts of the other businesses will be taken up after the 1st April 1946. One of the businesses was a liquor business, which admittedly was to come to an end on the 31st of March 1946; but there was also another business; that was a kirana shop, which was not a very big business. But all the same it was there and there is force, therefore, in the contention which has been advanced on behalf of the appellants that it as not as if there has been an oversight on the part of the parties, but the parties knew that the businesses might go on afterwards; but if they were carried on, they did not particularly care for providing by the compromise decree for accounts of those businesses being taken after the 1st of April 1946."Having said all this they record the conclusion that the compromise did not expressly negative the right of the plaintiff to an account of motor business. We are unable to accept this conclusion. The observations quoted above negative the plaintiffs case about mistake or misunderstanding in regard to the true effect of the compromise and show that the plaintiff abandoned the right to account after the crucial date and the status of the parties thereafter changed into one of tenants in common. If the plaintiff really intended that accounts of the motor business or indeed of all other businesses were to be taken up to the date of the final decree, there was no point in mentioning the 31st March, 1946. The normal course, after the preliminary decree was passed by the court, was to divide all the property by the metes and bounds and to award monies as found on examination of the accounts right up to the date of the final decree. But for the compromise which limited the period of the account the plaintiff would have obtained the relief he is now seeking in the partition suit as accounts of would have been taken of all the businesses up to the date of the final decree. The plaintiff has himself to thank for preventing the natural course of events and for forbidding the accounts to be taken after the 31st March, 1946. The plaintiff on the other hand has no real grievance in the matter, for although the defendants 1 and 2, who continued to run the motor business, may have made some money with the help of the two old motor buses, the plaintiff whose keeneses to run the liquor business is apparent from the notice referred to above was not precluded from reaping the fruits of that business. It is hard to conceive that the plaintiff would have agreed to share his burden of the loss if the motor business has sustained any. We hold, therefore, that the compromise closed once for all the controvers about taking any account of the joint family businesses including the motor business after the 31st March, 1946 and the plaintiff is bound by the terms of the compromise and the consent decree following upon it.9. The obvious effect of this finding is that the plaintiff is barred by the principle of res judicata from reagitating the question in the present suit. It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of res judicata.10. We are also of opinion that the plaintiffs claim is barred by the provisions of Order II, Rule 2(3) of the Code of Civil Procedure. The plaintiff by confining his claim to account up to March 31, 1946, only, implicitly if not explicitly, relinquished his claim to the account for the subsequent period. Sub-rule 3 clearly lays down that if a person omits, except with the leave of the court, to sue for all reliefs to which he is entitled, he shall not afterwards sue for any relief so omitted. We do not agree with the High Court that the cause of action in the subsequent suit was different from the cause of action in the first suit. The cause of action in the first suit was the desire of the plaintiff to separate from his brothers and to divide the joint family property. That suit embraced the entire property without any reservation and was compromised, the plaintiff having abandoned his claim to account in respect to the motor business subsequent to March 31, 1946. His subsequent suit to enforce a part of the claim is founded on the same cause of action which he deliberately relinquished. We are clear, therefore, that the cause of action in the two suits being the same, the suit is barred under Order II, R. 2(3)of the Civil Procedure Code.11. As the suit is barred both by res judicata and Order II, Rule 2(3) of the Civil Procedure Code, no further question as to the applicability of Section 90 of the Indian Trusts Act can possibly arise under the circumstances.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. It seems to us that upon a fair reading of the compromise arrived at between the parties in the circumstances then existing, the only legitimate conclusion possible is that the parties had agreed to confine the taking of all accounts up to March 31, 1946, and had closed the door to reopening them beyond that date. If the compromise was arrived at after full consideration by the parties and was not vitiated by fraud, misrepresentation, mistake or misunderstanding as held by the trial Court - a finding which was not interfered with by the High Court it follows that a matter once concluded between the parties who were dealing with each other at arms length cannot now bearrangement was apparently acceptable to all the brothers as being fair and reasonable and as not giving undue advantage to any party over the other. This being our construction of the compromise, it follows that the plaintiffs conduct in going back upon that arrangement by filing a fresh suit in regard to the motor business only is anything but honest. The plaint filed in the previous suit leaves no manner of doubt that the plaintiffs in that suit sought a complete division of all the family property both moveable and immoveable and a final determination of all the accounts in respect of the familysaid all this they record the conclusion that the compromise did not expressly negative the right of the plaintiff to an account of motor business. We are unable to accept this conclusion. The observations quoted above negative the plaintiffs case about mistake or misunderstanding in regard to the true effect of the compromise and show that the plaintiff abandoned the right to account after the crucial date and the status of the parties thereafter changed into one of tenants in common. If the plaintiff really intended that accounts of the motor business or indeed of all other businesses were to be taken up to the date of the final decree, there was no point in mentioning the 31st March, 1946. The normal course, after the preliminary decree was passed by the court, was to divide all the property by the metes and bounds and to award monies as found on examination of the accounts right up to the date of the final decree. But for the compromise which limited the period of the account the plaintiff would have obtained the relief he is now seeking in the partition suit as accounts of would have been taken of all the businesses up to the date of the final decree. The plaintiff has himself to thank for preventing the natural course of events and for forbidding the accounts to be taken after the 31st March, 1946. The plaintiff on the other hand has no real grievance in the matter, for although the defendants 1 and 2, who continued to run the motor business, may have made some money with the help of the two old motor buses, the plaintiff whose keeneses to run the liquor business is apparent from the notice referred to above was not precluded from reaping the fruits of that business. It is hard to conceive that the plaintiff would have agreed to share his burden of the loss if the motor business has sustained any. We hold, therefore, that the compromise closed once for all the controvers about taking any account of the joint family businesses including the motor business after the 31st March, 1946 and the plaintiff is bound by the terms of the compromiseThe obvious effect of this finding is that the plaintiff is barred by the principle of res judicata from reagitating the question in the present suit. It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of  res judicata.10. We are also of opinion that the plaintiffs claim is barred by the provisions of Order II, Rule 2(3) of the Code of Civil Procedure. The plaintiff by confining his claim to account up to March 31, 1946, only, implicitly if not explicitly, relinquished his claim to the account for the subsequent period. Sub-rule 3 clearly lays down that if a person omits, except with the leave of the court, to sue for all reliefs to which he is entitled, he shall not afterwards sue for any relief so omitted. We do not agree with the High Court that the cause of action in the subsequent suit was different from the cause of action in the first suit. The cause of action in the first suit was the desire of the plaintiff to separate from his brothers and to divide the joint family property. That suit embraced the entire property without any reservation and was compromised, the plaintiff having abandoned his claim to account in respect to the motor business subsequent to March 31, 1946. His subsequent suit to enforce a part of the claim is founded on the same cause of action which he deliberately relinquished. We are clear, therefore, that the cause of action in the two suits being the same, the suit is barred under Order II, R. 2(3)of the Civil Procedure Code.11. As the suit is barred both by res judicata and Order II, Rule 2(3) of the Civil Procedure Code, no further question as to the applicability of Section 90 of the Indian Trusts Act can possibly arise under the circumstances.