Kailas Mondal vs Baroda Sundari Dasya

Maclean, C.J.—I think this appeal must succeed. In 1878, or possibly a little anterior to that date, as the judgment to which I refer is dated the 28th February 1878, the present Plaintiff brought an action against the present Defendant for the recovery of rent. In that suit the Defendant pleaded payment, but did not adduce any evidence to make out his plea. On the 28th February 1878, the Courts decreed the suit in favour of the then Plaintiff with costs and interest, that is to say, the Court decreed at that time that the Plaintiff was entitled to the particular amount of rent which the Plaintiff then claimed. On the 13th April 1894, sixteen years afterwards, the same Plaintiff brings another rent suit against the same Defendant asking for payment of rent from the Defendant accruing due in respect of subsequent years. The Defendant puts in a defence raising, as he considers, various defences to that plaint. The case comes before the Munsif and the Subordinate Judge, and they both held that the decree in the previous suit amounted to res judicata as regards the claim in the present suit, and that the Defendant consequently was debarred by reason of the decree in the previous suit from putting in certain defences which he regarded rightly or wrongly as sufficient and good defences to the present suit. The decree in the former suit is, in my opinion no bar to his doing so. A decree in a former suit by a landlord against his tenant for rent then due does not constitute res judicata in a subsequent suit for rent subsequently accrued by the same Plaintiff against the same Defendant. The Defendant in the latter suit is entitled to show that the rent is not due; the decree in the former suit in no sense debars him from so doing. The Respondent relies mainly upon explanation 2 to sec. 13 of the Code of Civil Procedure. But looking first at sec. 13 itself can we say that the question whether any rent is now due was directly and substantially in issue in the former suit or that it has been heard and finally decided by the Court in the previous suit. The rent for which the Plaintiff is now suing had not even accrued when the previous suit was brought. All that the Court previously decided was that a particular amount of rent they claimed, was due from the Defendant to the Plaintiff. Can it be said to follow from that, that the rent now claimed is of necessity by reason of that decision in 1878, equally due from the Defendant, or that the Defendant is to be debarred from setting up any defences he may have to the present action ? In my opinion the present claim was not directly and substantially in issue, and it has not been heard or finally decided. In respect of explanation 2, the language of which, to my mind, is not very clear, it says that "any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.''''

We have no materials before us to enable us to say that the matter which the Defendant now desires to set up might or ought to have been made grounds of defence in the particular action in respect of that particular rent. The matters he now desires to set up may not have been within the knowledge of the Defendant in 1878. Can we say then that he is debarred from going into those matters now ? I think not. It may be that on looking further into the matter, some particular issue, precisely similar to some particular issue now raised, was then decided. If so, the principle of res judicata may apply possibly to that particular issue.

I see there is a decision in the case of Konnerav v. Garrav ILR 5 Bom. 594 upon this explanation which certainly has some bearing upon the present case. The head-note there is "this :--" In a previous suit between the Plaintiff and the Defendant, the Plaintiff alleged that there had been a partition of the family property into two parcels, and under a deed of partition drawn up at the time, claimed one of these parcels. The deed being held invalid, the suit was rejected, with liberty to Plaintiff to sue for a general partition. In the second suit the Plaintiff prayed for a general partition as a member of an undivided Hindu family.

Held-- That the second suit was not res judicata; for, although the Plaintiff might in the first suit, have made an alternative case and prayed for a general partition in case he failed to establish the previous partition which he alleged, yet it could not be said that he ought to have done so.

That Case has some bearing upon the present, so far as explanation 2 to sec. 13 is concerned.

The appeal, in my opinion, must succeed, and the case must be remanded to the Court of first instance for retrial. Costs will be dealt with by the Court retrying the case.

Banerjee, J.

I am of the same opinion. The plea of res judicata in this case is based upon the terms of explanation 2 to sec. 13 of the Code of Civil Procedure. It is contended that as the Defendant could have urged in defence to the former action, the defence now raised by him, namely, that the Plaintiff is a mere benamidar, that is a sufficient reason why he should be precluded from raising that defence now. No doubt, explanation 2 is very comprehensive in its terms; but the question is. whether it would include a case like the present. Granting that the matter now in issue might and ought to have been made a ground of defence in the former suit, the question still remains whether it "has been heard and finally decided" by the Court within the meaning of sec. 13. All that explanation 2 says, is that "any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit," but it does not go on to say, "and it shall be deemed to have been heard and finally decided " notwithstanding that the question was never considered by the Court, and notwithstanding that the subject-matter of the subsequent suit is different from that of the former suit. It is only where the subject-matter of the two suits is the same that the matter can be said to be heard and finally decided within the meaning of sec. 13 of the Code, even though the matter was never raised in issue; but it is very difficult to hold that a matter which was never raised in issue actually in the former suit and which is raised in defence in a subsequent suit in which the subject-matter is different from that of the former suit shall, nevertheless, by virtue of explanation 2 of sec. 13, be deemed to have been not only matter directly and substantially in issue, but matter which has been heard and finally decided. That being so, I think that the second explanation does not help the Respondent, The view I take is fully supported by a recent decision of this Court in the case of Sarkam Abu Torab Abdul Waited v. Rahman Baksh ILR 24 Cal. 83. I think I may add that to a case like the present may be fully applied the well-known observations of Vice-Chancellor Knight Bruce in Barrs v. Jackson, which, notwithstanding the reversal of the judgment, have been ever since recognised and acted upon. See R. v. Hutchins L.R.6 Q.B.D. 300 and Tekait Doorga Pershad Singh v. Tekaitni Drooga Konwari L.R.5 I. A. T58. The observations to which I refer are these : " It is, I think, to be recollected that the rule against re-agitating matter adjudicated is subject generally to this restriction, that however essential the establishment of particular facts may be to the soundness of a judicial decision, however it may proceed on them as established, and however binding and conclusive the decision may, as to its immediate and direct object be, those facts are not all necessarily established conclusively between the parties, and that either may again litigate them for any other purpose as to which they may come in question, provided the immediate subject of the decision be not attempted to be withdrawn from its operation, so as to defeat its direct object." For these reasons I think the case ought to go back for retrial.