Case: Mst. Gulab Bai Vs. Manphool Bai

show an intention to alter the law their Lordships do not think it right to put a construction upon them which would cause an alteration. It would thus be seen that this decision is an authority for the proposition that the rule of res judicata as interpreted even under the Code of 1877 was held to be the same as it obtained under the Code of 1859 as interpreted by the Privy Council in the light of the general considerations as to res judicata, enunciated in the case of Duchess of Kingston, 2 Sm L C (13th Ed) 644. 12. This position has been clearly stated in another decision of the Privy Council in Gokul Mandar v. Pudmanund Singh, ILR 29 Cal 707. On this occasion the Privy Council had to consider the effect of S.13 of the Code of 1882. The argument which was urged before the Privy Council on S.13 was that a decree in a previous suit cannot be pleaded as res judicata in a subsequent suit unless the judge by whom it was made had jurisdiction to try and decide not only the particular matter in issue but also the subsequent suit itself in which the issue is subsequently raised, and in upholding this argument their Lordships observed that in this respect the enactment goes beyond S. 13 of the previous Act X of 1877, and also, as appears to their Lordships, beyond the law laid down by the judges in the Duchess of Kingstons case, 2 Sen LC (13th Ed) 644. In other words, this decision would show that even though in the earlier Codes there may have been some doubt about the test of competent jurisdiction which has to be applied to the Court which tried the earlier suit, the position under the Code of 1882 is absolutely clear. The question to he asked under S. 13 of the said Code is could the Court which tried the earlier suit have tried the subsequent suit if it had been then filed ?In other words, it is the whole of the suit which should he within the competence of the Court at the earlier time and not a part of it. Having regard to this legislative background of S. 11 we feel no hesitation in holding that the word suit in the context must be construed literally and it denotes the whole of the suit and not a part of it or a material issue arising in it. 13. Several decisions have been cited before us where this question has been considered. We do not think any useful purpose would be served by referring to them. It may be enough to state that in a large majority of decisions the word suit has been literally construed (vide: Ram Dayal v. Jankidas, ILR 24 Bom 466 and Shibu Rout v. Baban Rout, ILR 35 Cal 353, though in some cases and under special circumstances a liberal construction has been accepted (vide: Sheikh Maqsood Ali v. H. Hunter, AIR 1943 Oudh 338 (FB). We must accordingly hold that the High Court was right in coming to the conclusion that the present suit is not barred by res judicata. 14. That takes us to the question of the construction of the rent note. The High Court has held that on a fair and reasonable construction of the document it must be held that the rent note has been passed by appellant 2 in favour of the respondent alone though incidentally out of respect the name of appellant 1 has been introduced in it. In our opinion this conclusion is right. It is true that the rent note has been executed in favour of both appellant 1 and the respondent; but it is significant that the rent note stipulates that when the rent is paid by appellant 2 he has to obtain a receipt from the owner. The word owner is used in singular and not plural and that indicates that the rent note proceeded on the assumption that the property which was the subject-matter of the rent note belonged to one owner and not two. There is another clause in the rent note which is clearer still. This clause reads : therefore, I have executed in my proper senses this rent note on a stamped paper valued Rs. 6/- in the names of each of the two, mother-in-law and the daughter in-law, Sethanji Gulab Bai widow of Phoolchandji in the capacity of being elder in the family and Sethanji Manphool Bai alias Bhanwar Bai widow of Lalchandji the heir in the family and the owner of the property, which will stand and may be used in times of need. This clause makes it perfectly clear that the inclusion of the name of appellant 1 was merely formal and it was intended to show respect to the elderly lady in the family. It also shows that the respondent was treated as the owner of the property as the heir of her deceased husband Lal Chand. Reading this clause together with the earlier clause as to the receipt for the payment of rent which we have already considered it is absolutely clear that the name of appellant 1 was not included in the rent note because she had any right to the property let out but solely as a matter of respect which the respondent showed to appellant 1. Threfore, in our opinion, the contention that the rent note has been passed by appellant 2 in favour of the respondent and appellant 1 cannot be sustained. If that be the true position there call be no doubt whatever that appellant 2 is precluded from disputing the title of the respondent in the present proceedings. As the High Court has pointed out the sequence of events leading to the execution of the suit rent note unambiguously shows that appellant 2 has recognised the respondent as the lessor and as such the principles of S. 116 of the Evidence Act clearly apply.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In ordinary course we might have called for finding on issues arising between to parties on his application, but since the matter is very old we do not wish to give it a further lease of life by adopting that course. We have, therefore, allowed Dhan Kumar to join the present proceedings without deciding the question as to the factum or validity of his alleged adoption. We may also add that the question about the factum and validity of the adoption of the respondents husband Lal Chand was also put in issue in the Courts below and in fact the District Court had made a finding against Lal Chands adoption. The High Court thought it unnecessary to decide this matter. Thus there is a dispute between Dhan Kumar and the respondent on two grounds : Dhan Kumar seeks to challenge the factum and validity of Lal Chands adoption, whereas the respondent seeks to challenge the factum and validity of Dhan Kumars adoption. Both these points have not been considered by us, and so the parties would be at liberty to agitate them in proper proceedings if they are so advised. In the present appeal we propose to consider only two points, one of res judicata and the other about the construction of the rent noteIf this contention is right then the relevant issue decided in the earlier litigation would be a part of the subsequent suit, and since the Munsiff who tried the earlier suit was competent to try this part of the subsequent suit the requisite condition is a satisfied and the suit is thus barred by res judicataThe basis of the rule of res judicata is that an individual should not be vexed twice for the same cause, and the liberal construction of the word suit would be consistent with this basis; otherwise if the competence of the earlier Court is going to be judged by reference to its competence to try the entire suit as subsequently instituted, in many cases where the matter directly and substantially in issue has been tried between the parties by the earlier Court it may have to be tried again in a subsequent suit because the earlier Court had no jurisdiction to try the subsequent suit having regard to its pecuniary jurisdiction. That, it is urged, would be anomalous and inconsistent with the principle underlying the doctrine of res judicataBesides, if considerations of anomaly are relevant it may be urged in support of the literal construction of the word suit that the finding recorded on a material issue by the Court of the lowest jurisdiction is intended not to bar the trial of the same issue in a subsequent suit filed before a Court of unlimited jurisdiction. To hold otherwise would itself introduce another kind of anomaly. Therefore, it seems to us that as a matter of construction the suggestion that the word suit should be liberally construed cannot be acceptedIt would thus be seen that in dealing with S. 2 of the Code of 1859 the Privy Council introduced the notion of concurrent jurisdiction though the words used in the section were a Court of competent jurisdiction, and, it was held that the jurisdiction must be concurrent as regards the pecuniary limit as well as the subject matter. This decision proceeded on the assumption that in order to make the decision of one Court final and conclusive in another Court, it trust be a decision of a Court which would have had jurisdiction over the matter in the subsequent suit in which the first decision is given in evidence as con- clusiveIn other words, this decision would show that even though in the earlier Codes there may have been some doubt about the test of competent jurisdiction which has to be applied to the Court which tried the earlier suit, the position under the Code of 1882 is absolutely clearIn other words, it is the whole of the suit which should he within the competence of the Court at the earlier time and not a part of it. Having regard to this legislative background of S. 11 we feel no hesitation in holding that the word suit in the context must be construed literally and it denotes the whole of the suit and not a part of it or a material issue arising in itWe do not think any useful purpose would be served by referring to them. It may be enough to state that in a large majority of decisions the word suit has been literally construedthough in some cases and under special circumstances a liberal construction has been. We must accordingly hold that the High Court was right in coming to the conclusion that the present suit is not barred by res judicataThe High Court has held that on a fair and reasonable construction of the document it must be held that the rent note has been passed by appellant 2 in favour of the respondent alone though incidentally out of respect the name of appellant 1 has been introduced in it. In our opinion this conclusion is right. It is true that the rent note has been executed in favour of both appellant 1 and the respondent; but it is significant that the rent note stipulates that when the rent is paid by appellant 2 he has to obtain a receipt from the owner. The word owner is used in singular and not plural and that indicates that the rent note proceeded on the assumption that the property which was the subject-matter of the rent note belonged to one owner and not two. There is another clause in the rent note which is clearer stillThis clause makes it perfectly clear that the inclusion of the name of appellant 1 was merely formal and it was intended to show respect to the elderly lady in the family. It also shows that the respondent was treated as the owner of the property as the heir of her deceased husband Lal Chand. Reading this clause together with the earlier clause as to the receipt for the payment of rent which we have already considered it is absolutely clear that the name of appellant 1 was not included in the rent note because she had any right to the property let out but solely as a matter of respect which the respondent showed to appellant 1. Threfore, in our opinion, the contention that the rent note has been passed by appellant 2 in favour of the respondent and appellant 1 cannot be sustained. If that be the true position there call be no doubt whatever that appellant 2 is precluded from disputing the title of the respondent in the present proceedings. As the High Court has pointed out the sequence of events leading to the execution of the suit rent note unambiguously shows that appellant 2 has recognised the respondent as the lessor and as such the principles of S. 116 of the Evidence Act clearly apply.