MAJIDAN Vs. SABIR ALI

JUDGEMENT

(1.) We have come to the conclusion that this appeal must be allowed. There is no question about the parties in this suit being the same as in the previous suit. There is also no question about the relief claimed in this suit being identical with the relief claimed in the former suit. That is clearly shown by the reliefs shown in parallel columns in the judgment of the Munsif. In a suit of this nature it was necessary for the plaintiffs, first, more as a matter of form than anything else, to prove that the defendant was in possession; further that she was a widow claiming to be in possession by virtue of the dower debt of her deceased husband, and that the plaintiffs were residuary heirs of the deceased husband. It is clear that at the trial of the first suit only one point was decided, namely, that the plaintiffs had failed to prove that the widow was in possession, and on that ground the suit was dismissed. It may often happen that where as, in these cases, there are three or four issues which the plaintiff has to establish, the Judge may choose to decide all of them, or only some of them, or only one of thorn, even though in his opinion his decision must be fatal to the plaintiff on all of them. In that sense it may be said not to be necessary for him to decide the other issues besides the first, but it may also be said not to be unnecessary, and certainly not incompetent, to decide the other issues. It so happens that in this case there was an appeal, and it so happens also that the appeal, in the former suit was heard by the Judge who has decided this case also in appeal. While agreeing in his disposal of the appeal in the former suit with the view taken by the trial Court, the learned Judge in appeal went on to find that the plaintiffs had also failed to prove that they were the heirs, and also that they had failed to prove that the property belonged to the deceased. No doubt there are cases in which it appears, and must be held, that what one may call the issues on the merits did not arise, or were unnecessary to decide, because the suit has been disposed of on some fundamental preliminary point which puts the plaintiff out of Courts. But the true view, as it seems to me, of a proceeding of that nature is that the issues on the merits do not really arise at all, and that any expression of opinion about them is mere dictum, and the statute is satisfied by holding that the issues upon which these dicta have been uttered were not directly and substantially in issue in the former suit. In our opinion that cannot be said of the present case. There is nothing in the statute about what is necessary or unnecessary to decide. It is undesirable to import into a section, when the Court's duty is to apply the language of the section to the facts the case before it, any expression which is not to be found there and the question whether an issue was or was not necessary in a former suit is only a test, and not a statutory provision, to enable the Court to decide what the statute does require, namely whether the issue was directly and substantially in issue. In these cases to which I have referred, it may be said that having come to the conclusion that the issue in controversy was not necessary, the Court may go on to hold as a consequence of that, that it was not directly and substantially in issue. But in this particular case the learned Judge had found, and it is a finding of fact, which having been arrived at by an appellate Court is not open to review in this Court, that he decided as an issue, which was undoubtedly relevant, that the plaintiffs had failed to prove the two matters which are sought now to be raised in this suit. That being so, it seems to me quite clear that the issue now in controversy, namely as to whether the plaintiff's were the heirs of Qamaruddin, was directly and substantially in issue in the former suit, and was decided adversely to the plaintiffs by a competent Court of appeal which disposed of the matter. I think the same result is reached by applying Expl. 5, namely that any relief and the issue now in controversy would be part of the relief in the former suit which is not expressly granted by the decree in the former suit is deemed to have been refused. I, therefore, come to the conclusion that this issue, which is now sought to be determined in this suit, was directly and substantially in issue in the former suit and cannot be raised again, having regard to the provisions of Section 11.

(2.) The appeal must, therefore, be allowed and the suit dismissed. Mukerji, J.

(3.) I entirely agree with my learned brother that the appeal must be allowed and the suit dismissed as barred by the principle of res judicata.