HAR GOBIND Vs. GITAM

JUDGEMENT

(1.) This second appeal arises cut of a suit brought by the plaintiff-appellant against the defendants for possession of a certain plot of land. The suit was against five defendants. Defendants 1-3 did not contest the suit. There has been a previous suit for possession of exactly the same plot against defendants 1 to 3 decided on 12 December 1918. That suit was No. 508 of 1918. At the time when that suit was decided defendants 4 and 5 of the present suit were minors. They are the brothers of Bahore Singh and Zalim Singh defendants 2 and 3 and the nephews of Sitaram defendant 1 all of which 3 defendants were parties in the former suit.

(2.) The trial Court gave a decree holding that the plaintiff's claim was proved under the rule of res judicata. The lower appellate Court rejected this finding on the ground that defendants 4 and 5 were minors, and no parties to the former suit.

(3.) In this appeal it is contended that defendants 1-3 in the former suit were litigating bona fide not only for themselves but for the two defendants 4 and 5, and Expl. 6, Section 11, Civil P.C. is invoked. For the respondent this is not denied, but it is stated that the former suit was decided ex parte, and so cannot operate as res judicata against defendants 4 and 5. I understand this to mean that inasmuch as defendants 1 to 3 did not appear to contest the former suit it cannot be said that they litigated bona fide on behalf of the minors.