L NEM KUMAR AGARWAL Vs. NEM KUMAR

JUDGEMENT

(1.) This is an application in revision which has been argued with great care and thoroughness by Mr. Gopi Nath, on the one hand, and by Mr. Hari Sarup, on the other. The question that has been raised is one of some difficulty as also of considerable importance.

(2.) An application was made in an appeal for staying that appeal because the matter in issue in that appeal was a matter directly and sub-stantially in issue in an earlier instituted appeal.

(3.) What the real test for applying Section 10 is has been differently laid down by different High Courts. Two decisions of this Court were cited before me, one reported in Hati Ram v. Hazi Mo-hammad, 1953 All LJ 578: (AIR 1954 All 141) (A), and another reported in Bhola Prasad v. Jagpata, 1954 All LJ 696 : ((S) AIR 1955 All 384) (B). Neither of these two cases really touches the point before me. Mr. Gopi Nath argued that the real test to be applied was one of res judicata, that is, if the earlier suit or appeal was going to operate as res judicata in respect of the second suit or appeal, then in such a case Section 10 was bound to be applicable. I have myself found some difficulty in accenting this test of res judicata. For one thing, res judicata may apply even in cases where a point is not raised by parties and it may also operate in cases where a point though not material to the decision of the case is yet raised by parties, gone into and decided by a Court. Now, in my view, such matters though they may operate as res judicata would not fall strict-ly speaking within the purview of Section 10. As I have said earlier the question that arises is one of some difficulty and, I therefore, consider it desirable that the question arising in this case be decided by a Bench of two judges. I accordingly direct that the record of this case be laid before the Hon'ble Chief Justice for the constitution of such a Bench. Desai, J.