Raja Dhakeswar Prasad Narain Singh vs Pookhar Panday

Jwala Prasad, J.—These appeals arise out of suits for rent brought by the appellants against the respondents for the years 1317 to 1320 Fasli. The claim for 1317 and 1318 was bhaoli and naqdi. The Subordinate Judge decreed the claims in all the suits in part. The learned District Judge in appeal further reduced the claim for the years 1319 and 1320 to the amount admitted by the defendants-respondents.

As regards the claim for bhaoli rent for 1317 and 1318, the learned District Judge set aside the decree of the Subordinate Judge and dismissed the suit on the ground that the claim was barred by the principle of res judicata. The plaintiffs have, therefore, come to this Court in second appeal. The following contentions have been raised on their behalf:--

(1) That the learned District Judge wrongly applied the principle of res judicata to the claim for 1317 and 1318.

(2) That the learned District Judge should not have allowed bhaoli rent for 1319 and 1320 according to the admission of the defendants, but should have allowed the amount determined by the Subordinate Judge.

The amount of naqdi rent allowed by the District Judge in respect of the years 1319 and 1320 has not been disputed in this appeal.

As to the second contention, the District Judge has recorded a clear finding of fact that the plaintiffs had given no definite idea of the amount of outturn. This finding has been arrived at upon the consideration of the plaint and the evidence given in the case, notably of the Patwari who admitted in his evidence that no appraisement or even detailed estimate of the crop was made in respect of the lands of the tenants sued. There is absolutely no reason why this finding should be disturbed in second appeal. This disposes of the contention of the appellants so far as the claim for the years 1319 and 1320 is concerned.

The first contention of the appellants deserves a more careful consideration. The principle of res judicata has been applied upon an earlier decision in Title Suit No. 87 of 1912 by the then Subordinate Judge of Gaya, Babu Prayag Nath, of the claim of the plaintiff in respect of the years 1317 and 1318. In that suit the finding of the Subordinate Judge was as follows:--

It is, therefore, impossible to ascertain in these suits the quantity and kind of crops in defendant''s bhaoli lands. The determination of the question involved in this issue No. 4 muse be left for separate rent suits to be hereafter brought by the plaintiff.

The judgment was concluded in the following words:--

That the plaintiffs'' claim for rent of bhaoli land be dismissed leaving the plaintiffs at liberty to sue for the rent of such land.

The decree prepared in the suit also contains the same words.

The defendants in that case went in appeal to the High Court and objected to the aforesaid order of the Subordinate Judge giving liberty to the plaintiffs to bring another suit for the rent for the years in claim. The ground taken in the memorandum of appeal is as follows:--

That the plaintiffs not being able to prove their claim the lower Court should have dismissed it and was not justified in ordering that the plaintiffs were at liberty to bring another suit for its recovery, specially when no such prayer was made by the plaintiffs.

Upon the above point taken in appeal, his Lordship of the Calcutta High Court (Fletcher, J.) observed as follows:--

The lower Court has left the question as to the amount of rent open to be settled in any future suit that may be brought by the parties. We do not express any opinion as to whether the Judge had or had not the power of giving the plaintiffs the liberty to withdraw from the suit so far as that claim is concerned. That must be decided in proper proceedings that the plaintiffs may choose to institute.

The result was that the order of the Subordinate Judge leaving the question to be decided in another suit by the plaintiffs remained undisturbed by the High Court. I do not think the plaintiffs are precluded from laying their present claim for the bhaoli rent for the years 1317 and 1318 by reason of the above order of the Subordinate Judge in their former suit. Although an issue was raised in that suit, yet the Subordinate Judge rightly or wrongly did not decide the issue and there can be no res judicata u/s 11 unless the issue was "heard and finally decided" by the Court. This is an essential condition for the application of the principle of res judicata.

The learned District Judge has relied on Sukh Lal v. Bhikki 11 A 187, A.W.N. (1889) 13 6 Ind. Dec. (N.S.) 548. But in that case it was held upon evidence that the plaintiff was entitled to one-third share of the land in suit. The issue about the title of the plaintiff was decided and determined; yet the Munsif wrongly dismissed the suit, adding that his order will not prevent the plaintiff from instituting another suit for the one-third share decided in his favour. The second suit by the plaintiff brought for possession of the one-third share was held barred by res judicata on the ground that his title was declared and decided in the first suit and that the Munsif wrongly dismissed the whole claim instead of granting him relief in respect of one-third interest to which he was entitled and the plaintiff could rectify the decree by a review or an appeal. It was pointed out by Mahmud, J., that "where an issue has been raised and evidence received and adjudication arrived at the suit does become res judicata". This ruling, therefore, does not apply to the present case, inasmuch as although an issue was raised there was no adjudication arrived at by the Subordinate Judge in the first suit.

The present case is rather similar to the case of Ram Charan Buhardar v. Reaz-ud-din (sic)C. 856, 5 Ind. Dec. (N.S.) 572, where the Courts declined to decide the issue and dismissed the plaintiff''s suit without prejudice to his right to bring a fresh suit for possession of the same lands. It was held that what "was left undecided in the former suit cannot be said to have been heard and finally decided within the meaning of section 13 of the Code". The following observation in that case applies to this case as well:--

It may be that in the former suit both Courts ought, properly speaking, to have insisted on proper issues being raised, and to have tried those issues upon the best evidence that the parties could adduce. But we are not prepared to say that the course taken by those Courts was ultra vires. They considered, rightly or wrongly, that they were not in a position to try the main question in the cause.

In Langmead v. Maple (1865) 18 C.B. (N.S.) 256; 144 E.R. 441; 11 Jul. (N.S.) 177; 12 L.T. (N.S.) 143; 13 W.R. 469; 144 R.R. 482, the plaintiff''s suit was dismissed without prejudice to his right to bring another suit. It was held that the subsequent action by the plaintiff was not barred by the principle of res judicata. Willes, J., laid down that "the conditions for the exclusion of jurisdiction on the ground of res judicata are that the same identical matters shall have come in question already in a Court of competent jurisdiction, that the matter shall have been controverted and that it shall have been finally decided."

The above principle is affirmed by Lord Macnaghten in (1897) L.R. 24 I.A. 50 (Privy Council) , where his Lordship says as follows:--"To support a plea of res judicata it is not enough that the parties are the same and that the same matter is in issue. The matter must have been ''heard and finally decided''."

That case is much stronger than the present one, as in that case the plaintiff''s suit was dismissed on merits by the Sub-ordinate Judge and in appeal the High Court, while dismissing the case, withheld any decision on the issue concerning the merits of the case. There can be no res judicata when the question is left open: vide Gunga Bishen Bhugut and Others Vs. Raghoonath Ojha, , Chunder Coomar Mitter Vs. Sib Sundari Dassee, and Ghurphekni v. Purmeshar Dayal Dubey 5 C.L.J. 653.

In the Privy Council case of 3 CWN 517 (Privy Council) , where the plaintiff''s suit was dismissed by the High Court of Allahabad leaving it open to the plaintiffs to institute a fresh suit, it was held by their Lordships of the Privy Council that the former judgment did not operate as res judicata, on the ground that the Judges in the former suit did not intend to decide anything as between the parties and left it open to the plaintiffs to institute a suit against the defendant.

As to the contention about the order of the Court giving the plaintiff liberty to bring another suit it was answered by their Lordships of the Privy Council in the following words:--

The question is not whether the judgment of the High Court in 1886 was right, but whether it did or did not finally decide the...question as between Nepal Gir and Narbada Gir. It would be a contradiction in terms to say that the Court had finally decided the matters which it expressly left untouched and undecided.

The learned District Judge has tried to distinguish the aforesaid Privy Council ruling on the ground that. "The Privy Council had before it two unintelligible judgments and, therefore, it was not possible to say with certainty that the question at issue in the second suit had been at issue in the first suit." This is not the ground upon which their Lordships of the Privy Council held that the principle of res judicata did not apply.

The ground was that the question was left undecided as is clear from the following words:--

One thing, however, is plain; the learned Judges in 1886 did not intend to decide anything as between Nepal Gir and Narbada Gir.

Their Lordships of the Privy Council in a recent case, 22 CWN 121 (Privy Council) , have held that the principle of res judicata did not apply where the Court of Appeal refused to determine the issue.

It is thus clear from the summary of the decisions referred to above that the refusal of the Court to determine an issue does not operate as res judicata. It dees not matter whether the Court was right or wrong in refusing to try the issue, or in giving liberty to bring another suit. The CPC in section 11 has clearly laid down that the matter must have been "heard and finally decided" in order to apply the bar of res judicata to a subsequent suit.

I, therefore, hold that the claim of the plaintiffs for the bhaoli rent of 1317 and 1318 was not barred by reason of the decision in the former Suit No. 87 of 1912 and that the plaintiffs are entitled to a decree for the amount of rent proved by them for the years 1317 and 1318. The case must, therefore, be remanded to the lower Appellate Court to determine the amount of rent that the plaintiffs are entitled to for the years 1317 and 1318 and to return its finding to this Court by the 1st April.

Reginald Roe, J.

I agree that it is not res judicata that the appellants are not entitled to any rent at all for the years 1317 and 1318, and, therefore, concur in the proposed order remanding the case for a trial of the issue; what amount is due for the years 1317 and 1318. I do not consider it necessary to decide at present whether anything at all was decided by the previous litigation.