Calcutta High Court
Brojo Behari Mitter vs Kedar Nath Mozumdar on 23 March, 1886
Equivalent citations: (1885)ILR 12CAL580
JUDGMENT
1. In our opinion this suit is not barred under Section 13 of the Code of Civil Procedure. No doubt in the former suit the matter now in issue was also in issue and was formally determined, but that suit was not "between the same parties" as this suit "or between parties under whom the parties in this suit claim." The plaintiff is the landlord of the plaintiff in the former suit, and cannot be barred by the decision of that suit, which was between his tenant, a third party, because he was joined as a defendant with that party. It is sufficient to point out that the conduct of the suit was not in his hands; and if it had been abandoned by the plaintiff so as to cause it to be dismissed, it could not reasonably be held that this suit was barred. If this were possible, a person in the position of the plaintiff would be helpless, for he would not be able to re -open the case or to contest the order passed by appeal to a higher Court.
2. The judgment of the Pull Bench in the case of Gobind Chund Koondoo v. Taruck Chunder Bose I.L.R. 3 Cal. 146 is not in point.
3. The suit must therefore be remanded to the lower Appellate Court for trial on its merits. Costs to abide the result.