9911796707
TMI Blog1897 (1) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... , even if the proposition of law, upon the assumed correctness of which it was based, was correct, it did not affect this case, as a second appeal in fact lay in the former suit. This is quite true as regards one of the two cases, namely, the appeal from Appellate Decree No. 759 of 1895; but it is as, has been shown to us now, not true with reference to the appeal from Appellate Decree No. 695 of 1895, the decision upon which the plea of res judicata is based in this case having been passed in a case in which no second appeal lay. 2. An application for review of judgment was made in this case on the ground of there being the abovementioned error in our decision; the application was granted, and the case was reheard under Section 630 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Vakil for the respondents urged in the first place that the question did arise, as a second appeal Was barred in the former case, a question relating to interest being different from one relating to the amount of rent annually payable within the meaning of Section 153, and in support of this contention, he relied upon the case of Koylash Chandra De v. Tarak Nath Mandal ante p. 571 ; and in the second place he contended that the question should be answered in the negative, as Section 13 of the Code of Civil Procedure required that the former suit, the decision in which was pleaded as res judicata, should be triable, not only in the first instance, but also in successive appeals by the same Court by which the second suit is triabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been heard and finally decided by such Court. 8. Now the matter in issue in this suit, namely, whether the rent of the defendant's holding is payable quarterly or annually, was also directly and substantially in issue in the former suit brought in the Munsif's Court which was competent to try the present suit: the issue was decided against the defendants by the Munsif, but on appeal the Appellate Court, that is the Court of the Subordinate Judge which was competent to try the first appeal in the present suit, finally decided the issue in favour of the defendants. As has been said above, a second appeal was barred in the former suit by reason of its value, but a second appeal is not barred in the present suit. Does this case t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t instance by the Munsif operating as res judicata in a subsequent suit of value exceeding the limit of the Munsif s jurisdiction by reason of such suit being cognizable by the Appellate Court---a result evidently not contemplated by the section, as has been held in several cases: see Baharasi Lal Chowdhry v. Sarat Chunder Dass (1895) I.L.R. 23 Cal. 415; Pathuma v. Salimamma (1884) I.L.R. 8 Mad. 83; Run Bahadur v. Lucho Koer (1884) I.L.R. 11 Cal. 301: L. R. 12 I. A. 23. But the difficulty is completely removed if we read the words heard and finally decided by such Court to mean heard and finally decided by such Court, either if no appeal is preferred from its judgment, or if an appeal being preferred has been disposed of and the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to the words finally decided by such Court. Another and a still greater anomaly was noticed with reference to the words competent to try such subsequent suit in the case of Gopi Nath Chobey v. Bhugwat Pershad (1884) I.L.R. 10 Cal. 697 and Raghunath Panjah v. Issur Chunder Chowdhry (1884) I.L.R. 11 Cal. 153 in which it was held that those words must be taken to mean competent to try the subsequent suit, if it had been brought at the same time that the former suit was brought. It may also be conceded that as an estoppel, to use the language of Sir BARNES PKACOCK in Edun v. Bechun (1867) 8. W. R. 175 shuts out enquiry into the truth, it is necessary to see that the principle of res judicata is not unduly enlarged, and that it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds and even the structure of the sentence (see Maxwell on the Interpretation of Statutes, Chapter IX), but that is allowed only where the Court is coerced to do so to avoid some serious injustice or to prevent a statute from being reduced to a nullity; or for any other similar reason see Ex parte Rashleigh, (1875) L.R. 2 Ch. Div., 9 (13); Salmon v. Duncombe (1886) L. R. 11 App. Cas. 627. In the present case it cannot be said that any such reason forces us to adopt the strained construction contended for on behalf of the respondents, for which the words used in the section afford no warrant. Moreover, the construction contended for will, in cases like the present, be attended with some anomaly, if not also hardship and injustice. For if t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
