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9. The difference between issues 'collateral' and 'direct' depends upon whether it was possible to pass the decree without any finding upon the particular issue.

(3) With regard to the relief granted in a suit, the decree may render it necessary to imply a decision on a question not expressly decided, but with regard to issues, no implication is necessary, but we ought to have a clear decision to create a bar. (The application of the latter part of the rule would, of course, be to cases where the subject-matter of the two suits is different.) (4) Explanation IV does not dispense with the necessity of finding upon a matter which might and ought to have been made a ground of defence or attack in the former suit unless that matter must be taken to have been involved in the actual decree passed in the case.

11. Now, Section 11 of the Civil Procedure Code requires that the matter or issue should have been heard and finally decided by such Court. It does not say that it should have been decided in explicit terms. It cannot be doubted that if an adjudication on a matter is necessarily involved in the decision in a prior suit, the section must be understood to lay down that it must be taken to have been heard and finally decided. Sankaran Nair, J., admits that the principle of an implied decision must be adopted so far as whatever is required by decree in the previous suit is concerned. But he lays down that it is not applicable with regard to issues. He does not say how then the judgment in a suit is to be understood. No such distinction is warranted by the language of the section. The suit and an issue put forward for trial in the second suit are treated on exactly the same footing in the section, and the test of res judicata with regard to each is whether the matter directly and substantially in issue in the latter suit was the matter directly and substantially in issue in the suit or in an issue in the earlier suit. The word "issue" in the expression "suit or issue" must be distinguished from the use of the words "in issue" in the expression "the matter directly and substantially in issue." The latter expression, as already stated, is made applicable to both the latter suit and an issue raised in it. "Directly and substantially in issue" obviously means "directly and substantially in question, which would include everything necessarily involved," whether that expression is applied to the suit itself or an issue in it. This has to be borne in mind in interpreting Explanation IV also. It speaks of "any matter which might and ought to have been made ground of defence or attack in the former suit." The phrase "matter directly and substantially in issue" in the principal clause of the section is spoken of with reference to both suit and issue. Clearly, therefore, what ought to have been made ground of defence or attack with respect to any issue in the earlier suit must be taken to have been a matter directly and substantially in issue therein when the question is whether an issue in the earlier suit can be tried again in the latter suit. Again, in deciding whether any matter is res judicata, the question is, what is necessarily involved in the actual judgment of the Court in the earlier suit, not what relief was granted by the decree, because it is the matter decided (expressly or by necessary implication) that becomes res judicata. It is desirable to illustrate by a concrete example. Suppose a suit is instituted for one of the instalments payable according: to the terms of a bond. The defendant denies its genuineness and pleads also absence of consideration, and issues are framed on both points. The Court passes a decree for the instalment but records no explicit finding on either of the issues. A suit is subsequently instituted in the same Court for a second instalment and the defendant raises the same pleas as in the earlier suit. The subject-matter of the two suits is not the same and the dismissal of the second suit would not affect the actual decree passed in the earlier suit. Can it be contended that the issues may be tried again in the second suit? According to the learned Judge, apparently, they should be tried again. The executant of the bond, according to him, though he cannot seek to recover back the amount decreed against him in the earlier suit, may resist the second suit for the later instalment. The difference between issues 'collateral' and 'direct,' according to the learned Judge, depends upon "whether it was possible to pass the decree without any finding upon the particular issue." I am unable to accept his position that though a finding might be necessary to pass the judgment in the previous suit, the issues should not be taken to have been decided (unless explicitly decided) if the result of the second suit would not be to re-open the actual decree in the previous suit. The result of such a position would be that the same issues may be re-opened again and again in the same Court though such re-opening would be inconsistent with the decree and judgment in every one of the previous suits. According to the learned Judge, such inconsistency is immaterial. The decision of the Privy Council in Amanat Bibi v. Imdad Hosain 15 I.A. 106 : 15 C. 800 is referred to in support of this position. There were two earlier proceedings; one a suit to establish a sub-proprietary right as against a taluqdar, the other, a proceeding to recover the same property from the taluqdar under the terms of ascertain Revenue Circular on repaying to the taluqdar the arrears of revenue which he had paid to the Governments" The third proceeding, in which the plea of res judicata was raised, was a suit to redeem a mortgage granted by the person who was plaintiff in the earlier proceeding. The Privy Council held that the third suit was not barred as res judicata because the cause of action was different. Their Lordships held that the cause of action to establish a sub-proprietary right was obviously different from that in a suit for redemption, though the property sought to be recovered was the same. The question in issue, said their Lordships, was quite different in the two suits; and they interpreted the provisions in Section 7 of Act VIII of 1859, which enacted that every suit shall include the whole of the claim arising out of the cause of action," as "not requiring that every suit shall include every cause of action or every claim which the party has, but only that every suit should include the whole of the claim arising out of the action on which the suit is brought." It is now a well established proposition that, though the subject-matter of the litigation and the relief claimed may be the same, different suits may be maintained by a plaintiff if the cause of action in each suit be different. There were two stages in the second of the earlier proceedings. The first originated in an application by the plaintiff under a Revenue Circular to recover the property. The Settlement Officer who made the inquiry found that the plaintiff had conveyed the property to the taluqlar by a conditional sale which had become absolute in 1853, and that the plaintiff was further not entitled to recover the property as he had not re-paid to the taluqdar certain arrears of revenue paid by the latter which he was bound to re-pay before claiming to recover the property. Their Lordships held that this order under the Special Circular could not be treated as judicial proceedings at all. The plaintiff then had recourse to fresh proceedings on the ground that the payment of arrears by the taluqdar must be treated as having been made on his account. The Settlement Officer then again decided that the property had been transferred to the taluqdar by a conditional sale of the year 1853 which had become absolute. Their Lordships held that the question in those fresh proceedings must be taken to have been merely "whether the plaintiff was entitled to recover the property which had been transferred by the Government to the taluqdar on re-paying to the taluqdar the arrears of revenue which he had paid to Government," that being, according to their Lordships, the cause of action on which the plaintiff then claimed to recover. The matter in issue in the suit before their Lordships, they said, was "the respondent's right to redemption under the mortgage deed of 1854." Their Lordships then observed: "it may be difficult to reconcile the position of the taluqdar as mortgagee in 1854 with his position as absolute owner in 1853 under purchase from the mortgagor. But, if it be established that the respondent was a mortgagor in 1854 with the right of redemption, why should he be barred merely because at an earlier date he may have had no right to the property at all?" This is the passage relied on by the learned Judge for the proposition that the decision of an issue in the earlier suit inconsistent with an issue in the later suit will not make the suit or issue in the later suit res judicata. I can find no such proposition laid down by the Privy Council. They did not regard the later suit as inconsistent with the decision in the former suit that there was a conditional mortgage of 1853 which, if it was in operation, had become absolute in 1853. Proceeding on the basis that the conditional mortgage had been established to be true, if the taluqdar chose to take a mortgage in 1854 from the plaintiff and his subsequent holding was under that mortgage, their Lordships held that the mortgage of 1854 would furnish the plaintiff with a fresh cause of action, and a plaintiff need not combine in the same suit all his causes of action, though both suits might be for the recovery of the same property. They did not say that in the later suit the execution of the conditional sale of 1853 or its having become absolute could be denied. The observation that it may be difficult to reconcile the position of the talukdar as mortgagee in 1854 with his position as absolute owner in 1853 under a purchase from the mortgagor, meant no more than that it might appear to be improbable that a person who was absolute owner in 1853 would take a mortgage in 1854; but a mortgagee cannot deny the title of his mortgagor, and if the talukdar chose to take a mortgage from the plaintiff in 1854, he could not say that the plaintiff did not obtain a fresh cause of action for redemption of that mortgage. On the other hand, in Pahalwan Singh v. Maharaja Maheshur Buksh Singh Bahadur 12 B.L.R. 391 : 18 W.R. 182 (P. C) the Privy Council applied the rule of an implied decision of an issue by a former adjudication although the property in the two suits was different. The learned Judge seems to have been under the impression that in that case the decree in the later suit would re-open the decree in the earlier suit, but that was not the case, as the property in dispute in the two suits was different. It is, of course, necessary that in order that an issue may be res judicata, the decision in the former suit must necessarily involve an adjudication in a particular way on the issue raised in the later suit and its adjudication in a contrary way in the later suit must be inconsistent with the adjudication which must be implied in the earlier suit. In one part of his judgment, the learned Judge observes that where the decision on a question was essential to the relief granted, or where it formed the ground-work of the decision, then the matter must be deemed to have been directly and substantially in issue in the suit, but he afterwards restricts the scope of the second test to cases where the question was explicitly decided. For this restriction, I can find no warrant either in principle or in the language of the section.

13. The learned Judges holds that the proper terms of the patta to be tendered by the landholder to the ryot could not be regarded as having necessarily been directly and substantially in issue in a suit for rent. Two decisions of the Privy Council are referred to in support of this position. The first of them is Misir Raghobardial v. Sheo Baksh Singh 9 C. 439 : 12 C.L.R. 520 : 9 I.A. 197. In that case the plaintiff had previously instituted a suit for Rs. 1,665, the balance of interest due on a bond for Rs. 12,000 in a Court not competent to try suits exceeding Rs. 5,000 in value. The defendant had pleaded that the bond was supported by consideration only to the extent of Rs. 4,790, and that the amount already paid by him for interest exceeded the interest due on the actual consideration that had passed. The defendant's plea was upheld. The plaintiff, subsequently instituted a suit for the principal and interest due on the bond in a Court competent to try a suit of that value. The question was, whether the decision in the previous suit as to the amount of consideration that had passed for the bond was res judicata in the subsequent suit. Their Lordships held that it was not. The point was decided on the ground that the Court that decided the previous suit was incompetent to try the later suit for principal and interest. The rule as to the necessity for the Court trying the previous suit having concurrent jurisdiction to try the later suit had also been laid down by the decisions of the Privy Council under Act VIII of 1859, although the language of Section 2 of that Act did not in terms refer to that requisite. Sir Richard Couch, in pointing out that the rule, already applied by the Privy Council while Act VIII of 1859 was in force, was embodied in explicit terms in Act X of 1877, went on to observe that the issue as to consideration "was a 'collateral' rather than a 'direct' issue in the suit." He said: "The plaintiff might have succeeded without having a finding upon it if he had proved an admission by the defendant that the sum claimed was due for interest, or had shown that the Rs. 2,475, (the sum alleged to have been paid for interest) had been expressly paid on account of the larger sum which he said the defendant owed for interest." This is immediately followed by the sentence: "if the decision of the Assistant Commissioner is conclusive, he will, although he could not have tried the question in a suit on the bond, have bound the plaintiff as effectually as if he had jurisdiction to try that suit. Their Lordships think that this was not intended and that by Court of competent jurisdiction Act X of 1877, means a Court which has jurisdiction over the matter in the subsequent suit in which the decision is used as conclusive, or, in other words, a Court of concurrent jurisdiction." It is clear to my mind that his Lordship in making the observation contained in the previous sentence was only dealing with the question of the necessity of concurrent jurisdiction in the Court which tried the earlier suit, and he used the expression 'collateral' in the sense of 'not referring to the subject-matter of the previous suit' and that he did not mean that it was not necessary for the decision of the suit on the issues raised between the parties on the pleadings in the case. The observation was made with reference to the principle that the judgment of a Court not having jurisdiction to try the later suit would not be res judicata on any issue in the earlier suit, but only with respect to the actual subject-matter of the previous suit. In Run Bahadur Singh v. Lucho Koer 11 C. 301 : 12 I.A. 23 the decision in Misir Raghobardial v. Sheo Baksh Singh 9 C. 439 : 12 C.L.R. 520 : 9 I.A. 197 was treated as an authority only on the question that the adjudication of a Court not having concurrent jurisdiction with that trying the later suit would not make the decision of an issue res judicata. Both Misir Raghobardial v. Sheo Baksh Singh 9 C. 439 : 12 C.L.R. 520 : 9 I.A. 197 and Run Bahadur Singh v. Lucho Koer 11 C. 301 : 12 I.A. 23 on the other hand, proceed on the assumption that if there had been concurrence of jurisdiction in the two Courts, the finding on an issue in the earlier suit would have given rise to a successful plea of res judicata. It would appear that in the Duchess of Kingston's case 39 C. 527 : 11 M.L.T. 265 : (1912)1 M.W.N. 367 : 9 A.L.J. 332 : 14 Bom. L.B. 280 : 16 C.W.N. 505 : 15 C.L.J. 411 : 22 M.L.J. 468 : 14 Ind. Cas. 496 which was referred to by Sir Richard Couch in the judgment in Misir Ragho Bardial v. Sheobaksh Singh 9 C. 439 : 12 C.L.R. 520 : 9 I.A. 197 the expression 'direct issue' as opposed to a 'collateral' one was used in the sense of an issue directly determining the subject-matter of the previous proceedings and not in the sense in which it is obviously used in the Indian statute. There is, in my opinion, no foundation at all for making a distinction between an explicit decision and an implied decision of an issue in the application of the doctrine of res judicata, provided the matter raised in the issue was directly and substantially in issue in the earlier suit. If the decision was not sufficiently explicit, that would, no doubt, furnish the party affected by it in the earlier suit a good ground for appeal against the decision just as any other error or imperfection would do, but the defect in the finding is not one that can be collaterally attacked in the later suit. The same observation would apply even if an issue regarding a matter directly and substantially in issue in the former suit was not clearly raised or not raised at all, provided the matter is such, that it must be taken to have been decided in the earlier suit, that is, provided the judgment would not be sustainable unless the matter be taken to have been decided. Mr. Justice Sankaran Nair holds that Explanation IV, which states that "any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit," does not qualify the statement in the principal clause that the matter in issue should have been heard and finally decided by such Court. It is, of course, true that the matter should have been decided in contemplation of law but if, as the learned Judge concedes, it is sufficient if the matter must be taken to have been decided by necessary implication so far as the subject-matter of the suit and anything involved in the decree itself are concerned, what reason is there for putting a different construction on the same words as applied to the decision of an issue? And, in so far as what is involved in the decree is concerned, any matter which might and ought to have been made ground of defence or attack must be taken to have been decided, there is, in my opinion, equally no reason for not applying the same principle with respect to a matter directly and substantially in issue in an issue in the previous suit. As I have already observed, the language of Explanation IV is equally applicable both to the previous suit itself and to an issue in the suit. What use is there in enacting that what ought to have been made ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in that suit, if the matter is not also to be taken to have been decided in the previous suit? What was not made ground of defence or attack could not have been expressly decided. The Explanation would, therefore, be objectless if a decision also is not to be implied and made the ground of estoppel with respect to what is impliedly to be regarded as having been directly and substantially in issue. At any race, the logical result of the respondent's position must be to make an explicit decision equally necessary with respect to a ground of attack or defence not having been urged with regard to a matter involved in the decree itself in the previous suit. The learned Judge's position is, no doubt, supported by several decisions in the Calcutta High Court Kailash Mondul v. Baroda Sundari Dasi 24 C. 711 : 1 C.W.N. 565; Woomesh Chandra Maitia v. Barada Das Maitra 28 C. 17 but, in my opinion, these decisions are absolutely insupportable and quite inconsistent with the decisions of the Privy Council in Pahalwan Singh v. Maharaja Muheshur Buksh Singh Bahadur 12 B.L.R. 391 : 18 W.R. 182 (P.C.) and Mahomed Ibrahim Hossain Khan v. Ambika Prashad Singh 39 C. 527 : 11 M.L.T. 265 : (1912)1 M.W.N. 367 : 9 A.L.J. 332 : 14 Bom. L.B. 280 : 16 C.W.N. 505 : 15 C.L.J. 411 : 22 M.L.J. 468 : 14 Ind. Cas. 496 even if the decision of the same tribunal in Sri Gopal v. Pirthi Singh 24 A. 429 : 4 Bom. L.R. 827 : 6 C.W.N. 889 : 29 I.A. 118 (P.C.) could be distinguished, as stated by Sankaran Nair, J., on the ground that the implication of a decision on an issue, which ought to have been raised in the previous suit, was justifiable in that case as the decree passed in the earlier suit would itself be affected otherwise. The Calcutta High Court, however, did not consider Sri Gopal v. Pirthi Singh 24 A. 429 : 4 Bom. L.R. 827 : 6 C.W.N. 889 : 29 I.A. 118 (P.C.) distinguishable on that ground. Mr. Justice Gurudas Banerjee, who was a party to the decision in Kailash Mondal v. Baroda Sundari Dasi 24 C. 711: 1 C.W.N. 565 observed, in Rajendra Nath Ghose v. Tarangini Dasi 1 C.L.J. 248 that the position adopted by him in the previous case would require to be re-considered in consequence of the decision in Sri Gopal v. Pirthi Singh 24 A. 429 : 4 Bom. L.R. 827 : 6 C.W.N. 889 : 29 I.A. 118 (P.C.). The same view was taken by the Calcutta High Court in Kailash Chandra Mandal v. Ram Narain Giri 4 C.L.J. 211; Jamadar Singh v. Serajuddin Ahmed Chowhuri 35 C. 979; 8 C.L.J. 81 : 12 C.W.N. 862 and Mohim Chandra Sarkar v. Anil Bandhu Adhikary 13 C.W.N. 513 : 9 C.L.J. 332 : 5 M.L.T. 247 : 1 Ind. Cas. 66; although Jamadar Singh v. Serajuddin Ahmed Chowdhuri 35 C. 979 : 8 C.L.J. 82 : 12 C.W.N. 862 might be explicable if the distinction adopted by Sankaran Nair, J. be correct. This Court also has held that a ground of attack or defence, which a party omitted to bring forward in an earlier suit, must be taken to have been decided in the suit. See Arunachalam Chetty`Meyyappa Chetty 21 M. 91 at p. 99; Masilamani Pillai v. Tiruvengadam Pillai 31 M. 385. The point seems to me to be so obviously clear that it does not deserve further consideration.

6. I shall next deal with the argument that even though the question was directly and substantially in issue because the decision involved the finding on that issue, it must also have been heard and decided before it can be deemed res judicata. There are no doubt, observations in Kailash Mondul v. Baroda Sundari Dasi 24 C. 711 : 1 C.W.N. 565; Woomesh Chandra Maitra v. Barada Das Maitra 28 C. 17 and Rajendranath Ghose v. Tarangini Dasi 1 C.L.J. 248 to the above effect, but, as pointed out by Subramania Iyer, J., in Arunachalam Chetti v. Meyyappa Chetti 21 M. 91 at p. 99 if a Court is bound by Explanation II to Section 13 of the old Civil Procedure Code (corresponding to Explanation IV to Section 11 of the new Code), to adopt and act upon the fiction that a matter, which might and ought to have been made a ground of defence or attack in the former suit, should be deemed to have been a matter directly and substantially in issue in such suit, that same Explanation necessarily imposes the duty of acting upon the further fiction that that matter was also heard and decided and adjudicated upon in the former suit. Explanation II to Section 13 would be meaningless, as pointed out by the Allahabad High Court in Sri Gopal v. Pirthi Singh 20 A. 110 if it were necessary in cases which ware covered by it that the matter should have been, as a matter of fact, heard and finally decided in the previous suit. That case in Sri Gopal v. Pirthi Singh 20 A. 110 follows the Privy Council cases in Mahabir Pershad Singh v. Macnaghten 16 C. 682 : 16 I.A. 107 and Kameswar Pershad v. Rajkumari Ruttan Keor 20 C. 79 : 19 I.A. 234 and the interpretation of Section 13 by the Allahabad High Court in that case was approved and adopted by the Privy Council when the case went on appeal before their Lordships in Sri Gopal v. Pirthi Singh 24 A. 429 : 4 Bom. L.R. 827 : 6 C.W.N. 889 : 29 I.A. 118 (P.C.). The cases in Kailash Mondul v. Baroda Sundari Dasi 24 C. 711 : 1 C.W.N. 565 ; Woomesh Chandra Maitra v. Barada Das Maitra 28 C. 17 and Rajendranath Ghose v. Tarangini Dasi 1 C.L.J. 248 being opposed to the above decision of their Lordships of the Privy Council, can, no longer, be considered good law. In fact, the Calcutta High Court itself, in Jamadar Singh v. Serajuddin Ahmed Chaudhuri 35 C. 979 : 8 C.L.J. 82 : 12 C.W.N. 862 has virtually dissented from the cases in Kailash Mondal v. Baroda Sunndari Dasi 24 C. 711 : 1 C.W.N. 565 and Woomesh Chandra Maitra v. Barada Das Maitra 28 C. 17. At page 937 one of the learned Judges says [In Jamadar Singh's case 35 C. 979; 8 C.L.J. 82; 12 C.W.N. 862: "it is very difficult to see how a matter, which ex hypothesi was not before the former Court, could possibly have been heard and finally decided by it; and it seems to me that if this were necessary, the whole of Explanation II (to Section 13) would be rendered meaningless." Their Lordships also decided in that case that the decision in Sri Gopal v. Pirthi Singh 20 A. 110 is good law and that it is not necessary that the subject-matter of the two suits must be the same before Explanation II (to Section 13) can be applied. I might, however, state that this question (b) does not really arise in this case because I am unable to agree with the learned Judge whose judgment is under appeal, that the present question was not, as a matter of fact, heard and decided in the former suit. In the statement of facts in the beginning of this judgment, I believe I have shown that the question was really heard and decided as the defendant raised the plea as to the impropriety of the patta in the former suit and his plea was expressly overruled. See Soorjomonee Dayee v. Suddanund Mohapatter 12 B.L.R. 301: 20 W.R. 377 : I.A. Sup. Vol. 212 which decides that pleadings must be looked into to understand what was in issue and what was decided in the former suit). The fact that the cause of action and the subject-matters of the two suits are different is immaterial because the only question is whether the decision in the former suit on certain issues of fact is res judicata in the present suit and it is not necessary under Section 11 that the causes of action and the subject-matters of the two suits should be the same for a decision on issues of fact to constitute res judicata in a subsequent suit. Lastly, I am unable to hold that the decision as to the terms of the patta in the former suit was on a mere collateral question in the former suit. Section 11 does not use the word 'collateral' but uses the words 'directly and substantially in issue.' The Privy Council case in Misir Raghobardial v. Sheo Baksh Singh 9 C. 439 : 12 C.L.R. 520 : 9 I.A. 197 was decided mainly on the ground that the Court which tried the first suit was not competent to try the second suit and hence that the decision of an issue in the first suit was not res judicata in the second suit. There is an expression at page 415 of the judgment that the issue decided in the former suit was merely a "collateral" issue, though the facts show that it was a direct and substantial issue. In the Duchess of Kingston's case 2 Smith's L.C. 778, it would seem to have been held that where) the Court which decided the first suit was not competent to decide the second suit, the question of fact decided by the former Court, though material for the decision, must be deemed to have been "collateral" to the subject-matter of the first suit. It was with reference to that use of the word "collateral" that the Privy Council held, that the Court, which decided the first suit, dealt with that issue only as a collateral issue. If the Privy Council, by their obiter dictum, intended to state that the question was not directly and substantially in issue in the former suit, a dictum irreconcilable with the Privy Council decision in Pahalwan Singh v. Maharaja Muheshur Buksh Singh Bahadur 12 B.L.R. 391 : 18 W.R. 182 (P. C) such dictum, must be held to have been overruled by their later decisions already set out including Sri Gopal v. Pirithi Singh 24 A. 429 : 4 Bom. L.R. 827 : 6 C.W.N. 889 : 29 I.A. 118 (P.C.). The latest Privy Council case in Mahomed Ibrahim Hossain Khan v. Ambika Pershad Singh 39 C. 527 : 11 M.L.T. 265 : (1912)1 M.W.N. 367 : 9 A.L.J. 332 : 14 Bom. L.B. 280 : 16 C.W.N. 505 : 15 C.L.J. 411 : 22 M.L.J. 468 : 14 Ind. Cas. 496 seems to me to be conclusive on the matter, for their Lordships decide that Section 13, Explanation II, would bar a defendant who omits to raise a material issue in a former suit when he was a party thereto, even though that issue was not, as a matter of fact, heard and decided in the former suit. The case in Masilamani Pillai v. Tiruvengadam Pillai 31 M. 385 seems also to me to be conclusive on this question of res judicata. It is, no doubt, not enough to constitute res judicata that a determination contra in a later suit would be inconsistent with the determination in the former suit; for there is also a further requisite that the Court which decided the former such should have been competent to decide the later suit. In this case, this latter requisite also is complied with, and I am, therefore, blear that the findings of fact in the former suit are res judicata, one of those findings being that the defendants held the extent of lands mentioned in the patta tendered to them and are bound to pay rent according to the terms of the said patta.