K R GOPALA PATTER Vs. KSGOPALAKRISHNA PATTER

JUDGEMENT

(1.) THE only question that arises in this second appeal bears on the rule of res judicata. That rule was invoked against the plaintiff who is the appellant before us and both the lower Courts having found against him on the point, he has been nonsuited. Hence this second appeal by him. His present suit, which on the application of the rule of res judicata, he has been held by the lower Courts, not entitled to maintain, is for a third share of a certain property and for the partition, ascertainment and delivery of the same. His claim to such share is based on the allegation that the property belonged in common to his father, to the 1 defendant and to the father of defendants Nos. 2 and 3 as relating to a kurichit of which the said three persona were the stake-holders or proprietors. THE previous suit the adjudication in which has been put forward as a bar to the present claim of the plaintiff was instituted as plaintiff by the present 1st defendant. THE father of defendants Nos. 2 and 3 was the 2nd defendant in the previous suit and the present plaintiff was the 3 defendant therein. THE 1st defendant in that suit was the tenant in occupation of the suit property. THE plaint in that former suit has been filed as Ex. C in the present case. THE relief claimed in that action was for recovery of immediate possession of the land and for certain rents. Those reliefs were claimed on two grounds: firstly, that the property belonged to all the said three proprietors of the kurichit; and secondly, that till the termination of the kurichit, he, the present 1 defendant, was entitled to the management of the property and the receipt of the rents therefrom under the terms and conditions of a kararnama executed by and between the parties. THE plaintiff in the present suit as the 3 defendant in the previous suit did not appear or defend the action. But the father of the present 2nd. and 3 defend and did. His defence was that the present plaintiff as 3 defendant had no interest in it, that the present 1 defendant as plaintiff was not solely entitled to the possession of the proparty or the rents, but that both of them were so entitled, THE decrae in the previous suit has not been produced or filed as an exhibit in this cage, but the judgment therein has bean. THE District Munsif who tried that case aooepted the defence of the father of the present defendants Nos. 2 and 3 and gave, decree accordingly for possession and rents of the suit proparty in two equal moieties in favour of the present defendant No. 1 and the father of the present defendants Nos. 2 and 3. It is that judgment that is now contended and has been found by the lower Courts to operate as res judicata. THE question before us, is, whether the decision of the lower Courts regarding this bar by the rule of resjudicata is correct? Two observations with regard to the matter may be made in limine. THE first is that the previous suit which was based on the plaint instituted by the present 1 defendant was not only in subr stance but in terms a complete admistdon of the basis of the plaintiff's claim in the present suit. THE second is that on the present plaintiff's case though it was clear that no contest arose or could arise between him and the 1 defendant as plaintiff in the previous suit and though, therefore, he did not defend the action and consequently, though he was not a party to any adjudication arrived at in the suit, still there was in terms an adjudication, and it is now claimed on behalf of the defendants-respondents that he must be deemed to be barred by reason of such adjudication. It was admitted by Mr. K.P.M. Menon, learned Counsel for the respondents, that at first sight it, no doubt, appears to be unjust that a party should in such circumstances be held to be barred. But he argued that what seems so obvious is not really the law or the correct view. THE rule of res judicata is a rale against multiplicity of legal proceedings and is designed to secure some kind of finality in certain circumstances to judicial decisions. It is this rule that is embodied and enacted in Section 11, Civil Procedure Code. THE principles underlying the rule may be generally stated to fee that if two parties Contest a point in Court and the Court gives final adjudication on the point be tween the parties, it must thereafter as between them be treated ag final and is not liable to be re-agitated. As a corollary to this, the rule also provides that if a person had on a previous occasion an opportunity to agitate a particular point or question, and has failed or omitted to do so, then it must be assumed that he did not do so, because he could not land that, therefore, so far as such point or question is concerned, he must be regarded as being in the same position as a person who having raised or agitated a point or question the Court comes to find the same finally against him. It is having regard to these two cardinal principles of the rule that the rule of res judicata as between co-defendants has been postulated by Courts of Law. It has been admitted before us that so far as Co-defendants are concerned, the decision cf the Full Bench of this Court in the case of Konga Ramasami Iyer v, Ponnusami 70 Ind. Cas. 769; (1922) M.W.N. 526; A.I.R. 1922 Mad. 452; 16 L.W. 981; 31 M.L.T. 370 is binding on us. THE present Chief Justice in delivering the judgment of the Pull Bench refers with approval to the rule as laid down by Vice Chancellor Wigram in the leading case of Cottingham T. Earl of Shrewsbury (1843) 3 Hare 627; 67 E.R. 530; 15 L.J.Ch. 441. It is as follows: "If a plaintiff cannot get at his right without trying and deciding a case between co-defendants the Court will try and decide that case, and the co-defendants will be bound. But, if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains." THE learned Chief Justice referred also with approval to a passage from the judgment of West, J., in Ramachandra Narayan V/s. Narayan Mahadev 11 B. 216; 11 Ind. Jur. 301; 6 Ind. Dec. (N.S.) 142 in which the same doctrine was affirmed in this country. It follows from the rule accurately stated as above, that before there can be any adjudication between co-defendants operating as res judicata a conflict must have arisen between them. Such a conflict might, no doubt, arise in one of two ways. It might arise as the direct result of the jnanner in which the plaintiff has set out his case in the plaint. It might also arise as between the defendants themselves in the course of pleadings in answer to the plaintiff's case. Again in the latter class of cases the determination of the conflict as between co- defendants might or might not be necessary for the determination of the plaintiff's claim. THE rule obviously seems to be that it is only when the determination of the question as between co-defendants is necessary for the determination of the plaintiff's claim that the decision as between co-defendants would operate as res judicata otherwise, that is to say, if such determination as between co-defendants were not necessary for the decision of the plaintiff's case, it is clear that such decision would not operate as res judicata for the simple reason that it is on a question which, to adopt the language employed in Section 11, Civil Procedure Code, is though substantially not directly in issue. It would thus be clear that whenever the contest between co-defendants is not indicated and included in the plaintiff's action itself, then it follows that for the purposes of a decision operating as res judicata as between co-defendants there must have been actually a conflict or issue raised as between them and that such conflict or issue must have been necessary for the determination of the plaintiff's case or claim. Two illustrations may serve to make the matter clear. Let us suppose A files a suit for the recovery of a debt due by a deceased father from his two sons B and C as his legal representatives; then in such a case so laid no contest as between B and C could be regarded as indicated or included in the plaintiff's suit as framed and laid. In such a case, if B admitting himself to be a son and also admitting the debt should not defend the suit and then C should come in and put in a defence that B had been adpoted away to a third party, then the issue regarding the adoption of B may in a sense become necessary to be determined for the decision of the plaintiff's case. But such a determination would only be without contest or issue raised as between B and C. In such a case it is clear that it is absolutely unjust to hold that though B had no opportunity to contest the case of C, still the decision behind his back would operate as res judicata. To take another illustration, let us suppose A files a suit for the recovery of some property bequeathed to him under his Will by a deceased person and in such a suit A makes B and C defendants alleging that both of them are persons in possession of the property and would have been as sons of the deceased his heirs on intestacy and in the defence in suoh a suit C alleges that B has been adopted away to a third person, the issue relating to such adoption, though it may arise and come even to be decided by a Court, cannotbe regarded as necessary for the determination of the plaintiff's claim on the Will. In such a case even though a conflict may arise as between the co-defendants, the rule states that it will not operate as res judiaata because it was a question not directly and substantially in issue, or in other words, not necessary for the determination of the plaintiff's case. THE principle of the rule that it is only decisions in respect of questions directly and substantially in issue that would operate as res judiaata would appear to be based on a recognition of the fact that Courts of Law would be careful only in their decision with regard to questions and issues that arise directly and substantially and are necessary for the determination of the case and not with regard to other issues. Prom these considerations it is clear that as the plaintiff in this case was under no obligation to appear in the previous suit having regard to the suit as laid and as no issue was raised as between co-defendants, the rule of res judicata cannot apply, and that the lower Courts were wrong in the view that they did and in dismissing the plaintiff's action. THE lower Appellate Court referred to and relied upon the case of Ramdass Vithal Das V/s. Vazirsaheb 25 B. 589; 3 Bom. L.R. 179. That decision proceeded upon Explanation II of Section 13 of the old Civil Procedure Code and has no bearing whatever on the point under discussion. THE decision in the case of Har Charan Singh V/s. Harshankar Singh 18 A. 59; A.W.N. (1895) 164; 8 Ind. Dec. (N.S.) 145(1) also relied upon by the lower Appellate Court has no application whatever to the present case. It is also clear that the learned Subordinate Judge in the lower Appellate Court misunderstood the statement in tha judjment of Seshagiri Iyer, J , in the case of Sankaramahalingam Chetty V/s. Muthulakshmi 43 Ind. Cas. 860; 33 M.L.J. 740 at p. 745 to the effect that although a finding may be unnecessary yet if it is embodied in the decree, it is res judicata. It is clear that the finding referred to there was a findingagainst the party and on an adjudication against him. THE decision in the case of Bisheswar Dayal Sahu V/s. Bansropan Sahu 44 Ind. Cas. 546 has also no bearing on the question of res judicata, between co-defendants. Proceeding, therefore, oa the law as finally stated in thft Full Bench case above referred to, it is clear that the dismissal of the plaintiff's suit by the lower Courts on the ground of res judicata was clearly wrong. It, therefore, follows that the judgment and decree of both the lower Courts on that question should be reversed and that the case remanded to the District Munsif's Court for the trial and disposal of the othep issues in the case. THE plaintiff-appellant will have his costs both in this Court and in the lower Appeal late Court. THE Court-fee paid by the appellants both in this and in the lower Appellate Court will be refunded to him. Jackson, J.--I agree. It is a curious circumstance that in the course of the very learned arguments from either side, no direct reference was made to Section 11 itself. Yet in applying a Statute a perusal of the Statute itself is sometimes more useful than referring to numerous cases which by analogy may or may not have some beaming upon the point in issue. No mystery attaches to the principle of res judicata. If a matter has been directly and substantially in issue in a former suit between the same parties, and has been finally decided, that decision will be treated as final in a subsequent trial, with due regard to the competence of the Courts., If a plaintiff raises an issue in his plaint, and a defendant runs away from it by remaining ex parte, that defendant gives up his case, and the Court will finally decide it against him But if apart from the plaint which has been served upon such defendant, new matter is brought in, either by way of amending the plaint or by way of written statements from other defendants, the defendaat who has remained ex parte, cannot be said to be running away from issues of which he has never heard. It would be odd to say that such matter had been directly and substantially in issue between the parties, when it is perfectly obvious, as a matter of fact, that between these parties it has never been in issue at all. THE contrary position can only be established by assuming that a party once he is given notice of a suit must keep him-i self informed of every subsequent development, even though the plaint apprised him of nothing that he need contest. No case, and certainly no rule of procedure, has ever laid such a duty upon parties; and were this the law, it would follow as a natural corollary that every party must be served with every written statement and every amendment of the plaint. But in the present case, even if the present plaintiff had entered an appearance as defendant in the previous suit, it can hardly be said that the decree in that suit (of which it may be noted, no copy is forthcoming) would operate as res judicata; while a decision in the bare judgment could only so operate if it had been a decision necessary to the determination pf that suit. THE leading case on this point, Cottingham V/s. Earl of Shrewsbury (2) is well discussed in two Bombay rulings Ramachandra Narayan V/s. Narayan Mahadev (3) and Fakirchand Lallubhai V/s. Naginchand Kalidas 33 Ind. Cas. 423 40 B. 210; 17 Bom.L.R. 1106. Where an adjudication between the defendants is necessary to give the appror priate relief to the plaintiff, the adjudication will be res judicata between the plaintiff and defendants. Appropriate relief here means a relief consistent with the pleadings, and as far as can be gathered from the judgment in O.S. No. 69 of 1912 (the plaint is not exhibited) no adjudication between the defendants was necessary in order to give the plaintiff such appropriate relief. But, it is argued, we should only look at the decree, without regard to the pleadings, and in support of this is cited the observation of the Vice Chancellor in Cottingham V/s. Earl of Shrewsbury (2) "But, if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other." Contrariwise it is argued, if the relief given to the plaintiff does require a decision of a case between co-defendants, the co-defendants will be bound; therefore, since in O.S. No. 69 of 1912, the plaintiff was given an absolute title to a moiety of his claim, such absolute title necessarily negatived arjy title which the present plaintiff and the 3 defendant might have set up against the claim of the father of the present 2nd and 3 defendants, the then 2nd defendant. To this argument the first reply is that the respondents have not enabled us to say exactly what is decreed in O.S. No. 69 of 1912; because they have not exhibited the decree. THE relief prayed for in the plaint does not require or involve a decision between the defendants, and that is presumably why the then 3 defendant remained ex parte; and secondly, even supposing that the decree does give this absolute title, it is not safe to pick out isolated sentences from judgments dealing with a different set of facts. THE Vice Chancellor begins by saying: "If a plaintiff cannot get at his right without trying and deciding a esse between co-defendants the Court will try and decide that case, and the co-defendants will be bound." But in O.S. No. 69 of 1912 the plaintiff could get at his right without any such decision between co-defendants which at once distinguishes the two cases. THE Vice Chancellor is not considering a case like the one before us in which the plaintiff most certainly could have got at his right as claimed in the plaint without trying a case between co-defendants, but the Court may have wandered away from the pleadings and given the plaintiff more than he asked. In such a case new considerations arise when the subsequent Court sets itself to determine whether the matter has been substantially in issue between the parties and no assistance is afforded by citing what a Judge has said when the decree before him simply gave a relief appropriate to the pleadings. It is a different case altogether. THErefore, there is no force in the argument founded upon this dictum, that if the decree gives the plaintiff something which it could not have given without determining an issue between co-defendants, the co-defendants are bound. It must be a decree embodying the right which the plaintiff was trying to get, and then the dictum will be directly in point. If it is a decree embodying some further right, beyond the pleadings, a decree giving some relief not appropriate to the plaint, the case is otherwise, and not one which this dictum can settle outright. THE learned Subordinate Judge takes the ehort ground that the present plaintiff "should have been there" in O.S. No. 69 of 1912 to contest any claim that the father of defendants Nos. 2 and 3 might set up. But he was under no such obligation THE Subordinate Judge cites Ahmad Ali V/s. Najabat Khan (d), Balambhat V/s. Narayanbhat (10), Sankaramahalingam Chetty V/s. Muthulakshmi (6), Srooman Madabushi Gopalacharlu V/s. Emmani Subbamma (11) and the sixth Explanation to Section 11, Civil Procedure Code, Ahmad Ali V/s. Najabat Khan 18 A. 65; A.W.N. (1895) 156; 8 Ind. Dec.(N.S.) 749 merely quotes Ramachandra Narayan V/s. Narayan Mahadev (3) and is against the decision of the lower Appellate Court in so far as it emphasizes that for a judgment to be res judicata it must define the real rights of the defendants inter se; or in other words an implied definition is not enough. This is precisely the sentence selected for the caption of Balambhat V/s. Narayanbhat 25 B. 74; 2 Bom.L.R. 511 which again is founded on Ramachandra Narayan V/s. Narayan Mahadev (3). Srooman Madabushi Gopalacharlu V/s. Emmani Subbamma 55 Ind. Cas. 984; 43 M. 487; (1920) M.W.N. 435; 38 M.L.J. 493; 27 M.L.T. 219 concerns representative suits. Sankaramahalingam Chetty V/s. Mathulakshmi (b) is also largely founded upon the Bombay rulings; though one Judge questions whether the adjudication may not be implied as well as express. THE citation of authorities by the lower Appellate Court is, therefore, hardly happy, and does not support its view. It must be held, with regard to the circumstances of this particular caee, that, inasmuch as the principle of res judicata can only apply to a matter which has been substantially in issue between the parties, an issue raised by a defendant which is not strictly appropriate to the pleadings in the plaint cannot beheld to have been a matter substantially in issue between that defendant and another defendant who elected to remain ex parti after psrusal of the plaint alone.