MT WAHIDAN Vs. MTALIMAN

JUDGEMENT

(1.) The plaintiff's suit for possession was decreed by the lower appellate Court and the defendant has come here in second appeal on the ground that the suit was barred by the principles of res judicata. The plaintiff had brought an earlier suit for possession in 1926. In this suit various issues were framed and all of them were decided by the Munsif. The suit, however, was ultimately dismissed on the ground that there was no cause of action. It has been rightly pointed out by the lower appellate Court that the former suit ought not to have been dismissed but proceedings should have been taken by the Munsif under Order 7, Rule 11, which lays down an imperative injunction that the plaint shall be rejected where it does not disclose a cause of action.

(2.) This is an important matter, because under Rule 13, it is laid down that the rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. This imperative duty was not performed by the Court. The plaint is to be rejected before proceeding with the trial of the suit and it may therefore be said that when there was no cause of action, the Court had no jurisdiction to try the case and was not competent to decide the other issues. Under Section 11, Civil P.C., the bar arises only where the issue has been directly and substantially raised in a former suit. When there was no cause of action no matter of the plaint can be said to be directly and substantially in issue in the former suit. All that the plaintiff submitted to was that she had no cause of action for the suit and by submitting to that opinion she had no opportunity to appeal against the other findings of the trial Court in the previous suit. For these reasons, I agree with the opinion of the lower appellate Court and hold that the suit was not barred by the principles of res judicata. There is no other point in the grounds of appeal worthy of notice.

(3.) This appeal is dismissed with costs.