Obla Subbier vs Ramaswamy Konar on 15 November, 1926

Madras High Court
Obla Subbier vs Ramaswamy Konar on 15 November, 1926
Equivalent citations: AIR 1927 Mad 643, 103 Ind Cas 90
Author: Jackson


Jackson, J.

1. The plaintiff sued on a mortgage and obtained a decree for sale against first defendant and his minor son second defendant. The second defendant then brought O. S. No. 50 of 1920 in the Court of the District Munsif of Madura Taluk pleading that the mortgage debt was for improper purposes and therefore not binding upon him, also that he was not properly represented in the suit and praying for a declaration that the decree was not binding upon him. The District Munsif found that the second defendant’s guardian-ad-litem had never consented to act and granted the prayer that the decree was not binding. The plaintiff then applied successfully to have the suit reopened as against second defendant with a proper guardian. Both lower Courts have found on the rehearing that the debt was not binding upon second defendant inasmuch as it was only justified as being for trade, and-there was no proof that this is a trading family. The plaintiff appeals and attacks this finding mainly on the ground that in O. S. No. 50 of 1920 a direct issue was raised and determined:

Is the hypothecation debt contracted by the second defendant binding on the plaintiff

and the finding on that issue in the affirmative must operate as res judicata in the present suit.

2. Therefore the point for dstermination is whether this matter was directly and and substantially in issue in the former suit and was it heard and finally decided? There can be no doubt that the matter was directly in issue, and it was finally decided against the second defendant. The decree was in his favour because of the finding on the first issue in regard to proper representation, so there was no necessity to appeal against the decree. Probably if he liked he could have appealed against the finding, as an appeal from the decree – Venkateswarlu v. Lingayya A. I. R. 1924 Mad. 689 and Raghava Aiyangar v. Irula Thevan A. I. R. 1926 Mad. 974 But whether he elected to appeal or to refrain from appealing has no bearing upon the question of res judicata – Yusuf Sahib v. Durgi [1907] 30 Mad. 447 and Muthaya Shetti v. Kanthappa Shetti [1918] 7 M. L. W. 482 It was held in Parbati Debi v. Mathura Nath Banerjee [1913] 40 Cal. 29 that if the party were debarred from appealing there could be no res judicata; but the effect of the Madras rulings cited above would be that he is not debarred, and if he were, it would not affect the matter. Once it is found that the right to appeal is not a determining factor in the question, it is difficult to see how it can matter whether the res judicata is or is not embodied in a decree. But in Thakur Magundeo v. Thakur Mahadeo Singh [1891] 18 Cal. 647 the Privy Council ruling in Run Bahadur Singh v. Lucho Koer [1885] 11 Cal. 301 was quoted as authority for the proposition that if the decree is in spite of the finding, there can be no res judicata. In that case only one point was in issue, whether a family was separate or joint, and the High Court found on the facts that it was joint but decreed on the law, because a previous case operated as res judicata, that it was separate. The Judicial Committee merely remarks that the respondent need be under no apprehension that the finding on facts would stand in her way, because the actual decree is in a contrary sense. Thakur Magundeo v. Thakur Mahadeo Singh [1891] 18 Cal. 647 is one of those cases where two points had to be determined, whether the tenant had occupancy right, and whether he had received notice to quit. The decree dismissing the suit for want of proper notice to quit was no doubt in spite of the finding that the tenant had no occupancy right, but the, circumstances are entirely different, from those in Run Bahadur Singh v. Lucho Koer [1885] 11 Cal. 301 This is pointed out in Ramakrishna Naidu v. Krishnaswami Naidu [1919] 9 L. W. 180.

3. Therefore the question of finality is unaffected by considerations whether an appeal lay from the decision, or whether it was embodied in the decree. If the decision is on a matter which was substantially in issue between the parties it will be res judicata although there was no appeal, or could have been no appeal, and although the decree itself was based on grounds independent or in spite of the particular decision.

4. It remains then to see what is meant by substantially in issue. The definition of substantial in the Oxford Concise Dictionary “of real importance or value” brings out the sense of the phrase. To say that substantial means necessary puts it rather too high. Thus in Midnapore Zamindary Company Ltd. v. Naresh Narayan Roy A. I. R. 1924 P. C. 144 the Privy Council cites with approval a judgment of the Calcutta. High Court where it is observed at p. 640 it is contended that the issue:

was not a necessary, or a proper one to be tried in that suit, and that it is open to us to say so. But we must see first whether this Court adjudged otherwise, that is, whether this Court having the question before its mind decided that the issue did arise. If so, that decision would be as much res judicata as the final determination of the issue on the merits. If we are of opinion that the Court did so decide, we are not concerned to see whether it did so rightly or not, and indeed cannot do so. Now this is not a case, as not infrequently happens, where incidentally some point is decided which is not necessary, which was not of first-rate importance or specially brought to the notice of the Court.

5. The effect of this would seem to be that if an issue has been directly raised and decided, and is not manifestly incidental or irrelevant, the Court which is considering whether that decision amounts to res judicata should not import nice questions as to whether the issue had been absolutely necessary to the determination of the suit; it is sufficient to find that the Court and the parties throught so, and proceeded on that assumption. Cases may occur in which it will be extremely difficult to draw the line between what is irrelevant, and what the Court may be held to have thought important. For instance the case in Run Bahadur Singh v. Lucho Koer [1885] 11 Cal. 301 had no doubt proceeded on the assumption that the issue whether the family was or was not divided, was a necessary and proper issue; but the Judicial Committee at page 310 holds that:

the question of title was no more than incidental and subsidiary to the main question.

6. Again in Midnapur Zamindari Company, Ld. v. Naresh Narayan Roy A. I. R. 1922 P. C. 241 although the issue of occupancy right had been treated as necessary in the lower Court, and even taken on appeal to the High Court, the Judicial Committee nevertheless found that it could not be treated as res judicata because the defendants having succeeded on the other issue that the suit was premature had no occasion to go further as to the finding against them; so that (as I venture to think is the line of reasoning) by the time the question reached the High Court whose appellate decision is what was put forward as res judicata, the issue was obviously incidental however seriously the parties may have regarded it in the course of the trial.

7. But happily the present case is not on the border line, and presents no difficulties. In the suit to set aside the decree, the question as to whether or not the debt was binding, could only be regarded as irrelevant. There is no prayer for a declaration that the debt is not binding, and whether it was binding or not could not affect the question of setting aside the decree. Presumably the point was raised in the plaint merely as an assurance to the Munsif that the suit had real merits and was not one based on a bare, technical plea; but why the issue was ever tried is beyond my powers of presumption. I do not think it can be said that the Court really thought it of importance or value. Mr. Krishnan Nambiar was a Munsif of six years’ experience, and can be credited with the knowledge of what was relevant to a plea. His trying the issue ought to have been sheer inadvertence. I find therefore, that the decision in O. S. No. 50 of 1920 is not upon a matter substantially in issue in that suit so as to constitute it as res judicata in this. It was further argued that in dealing with the facts on their merits the lower Courts had misapprehended the evidence, but I do not find that they have erred in any respect. There was no evidence of necessity justifying a loan of Rs. 700. No other point was raised.

8. The appeal accordingly fails on all grounds and is dismissed with costs.

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