HRIDAY NATH ROY Vs. AKHIL CHANDRA ROY

JUDGEMENT

(1.) In this case the respondent is the Secretary of a religious association called the Amraguri Navavidhan Brahma Samaj. Some years ago he brought a suit against the defendants as Secretary of the Association for recovery of possession of the land in suit on the allegation that it was owned by the Brahma Samaj. That suit was decreed on 26 November 1909. The defendants appealed; but before the appeal was finally heard the plaintiff took possession through Court on 12 September 1910. He was subsequently dispossessed by the defendants in November 1910 which dispossession gave rise to the present suit. The appeal in the previous case was finally decided by the lower appellate Court on :25 July 1911 and dismissed, the decree in favour of the plaintiff having been maintained. The present suit was instituted on December 1920. Both the Courts below have given a partial decree to the plaintiff.

(2.) The only point that has been argued before us is that the suit in its present form is not maintainable. It is contended that the association is not a corporation within the meaning of Order 29, Civil P.C. The only provision therefore under which the plaintiff is entitled to maintain the suit is prescribed by Order 1, Rule 8. This question was raised in the Court below and decided against the defendant appellant. ""It should be noted here that the previous suit was brought under Order 1, Rule 8 but the defendants objected that the suit was not maintainable as that rule did not apply in that case the plaintiffs not being numerous. The objection in the previous suit was overruled by the trial Court but it was not argued in the lower appellate Court. It was attempted to be raised in second appeal in this Court but the learned Judges refused permission to allow the defendants to raise the point at that stage of the litigation. The trial Court in that suit held that the plaintiff as Secretary of the association was competent to maintain the suit and that it was not necessary to have recourse to the provision of Order 1, Rule 8. The defendant now turns round and takes the objection that the suit ought to have been brought under that rule. On behalf of the respondent it is argued that the question as to the competency of the plaintiff to maintain the suit was finally settled in the previous litigation and it cannot be re-agitated in this case. The appellant answers that the question raised in the previous suit as well as in this suit is a question of law and under some rulings of this Court the decision in a previous suit on a question of law does not operate as res judicata. If it were necessary to go into the question raised in this case, 1 would have felt great hesitation in accepting the observation made in some of the cases that the decision on a question of law does not operate as res judicata in a subsequent suit based on a different cause of action. This to my mind is totally inconsistent with the plain wording of Section 11, Civil P.C. and I am not prepared to express a definite opinion upon this point without further consideration. But on the facts it is not necessary to decide the point relating to res judicata raised in the appeal. In the previous suit the question raised by the appellant was that the suit was not maintainable under Order 1, Rule 8, Civil P.C. The Court overruled that objection and held that the plaintiff could maintain the suit even without the aid of that rule. In the present case the appellant contends that Order 1, Rule 8 is a bar to the present suit. The questions in the two suits do not seem to be the same and I do not think that the principle of res judicata should so extended as to be made applicable in this case. But there is another ground upon which it is easy to dispose of this matter. The plaintiff has brought the present suit not only as Secretary to the Brahma Samaj, but on the strength of the decree he had obtained in the previous suit which declared that he was entitled to the land in suit and was entitled to recover possession of it from the defendants. That decree is now final between the parties and the defendant should not be allowed to go behind it and attack the right of the plaintiff to maintain the present suit on the strength of the decree.

(3.) But I agree with my learned brother that this case is governed by the provisions of Section 99, Civil P.C., as the error or irregularity complained of does not in any way affect the merits of the case or the jurisdiction of the Court, though I am not sure that that section applies to the constitution of a suit or the right to maintain a suit as that is not a question which arises in any proceeding in the suit. But as the Judicial Committee have observed in Indrajit Pratap Sahi V/s. Amar Singh A.I.R. 1923 P.C. 128 the procedure laid down by law is intended to further the cause of justice and not retard it. The appeal in my opinion fails and is dismissed with costs. Jack, J.