K SANKARANARAYANA IYER Vs. VRVENKATARAMA IYER

JUDGEMENT

(1.) AFTER stating facts, his Lordship proceeded: Various arguments have been advanced before me by appellant's learned vakil. It is first argued that the order rejecting the plaint in the prior suit is res judicata with regard to the subject- matter of the present suit and, therefore, the plaintiff's suit should be dismissed. The learned vakil argues that the disposal of the prior suit was on its merits and therefore, under Order 17, Rule 3 of the C.P.C. it must be considered that the case was disposed of after hearing, that it was a disposal on the merits, and as such the plaintiff's are precluded from bringing the present suit. In my opinion Order 17, Rule 3 does not apply to the facts of the present case. Order 17, Rule 3 applies only after a suit has been instituted and only after it has been adjourned, for the purpose of giving evidence. But in the present case it cannot be said that even the suit was instituted because the amended plaint was not filed. Even if we consider that there was a plaint, still) the rejection of the plaint according to me falls within Order 17, Rule 11, Clause (e). Under these circumstances I must over-rule the plea of res judicata put forward on behalf of the appellant.

(2.) WE do not report the remaining portion of the judgment as it deals with questions of facts and is not material to our report.