Authored By : Francis Maclean, Banerjee

Francis Maclean, C.J.

1. I have had the advantage of reading Mr. Justice Banerjeesjudgment in this case, and I concur in the conclusion at which he arrives. Hehas gone so fully into the matter that I purpose to state very shortly thegrounds upon which I consider this rule ought to be discharged. The onlyquestion we have to decide is, whether the plea of res judicata ought toprevail. Admittedly the present plaintiff, some short time ago, brought a suitagainst the present defendant claiming identically the same relief as is soughtby the present suit, that is to say, damages against the defendant for notremoving certain offensive matter from certain property belonging to theplaintiff. This suit failed upon two grounds: (1) want of notice under Section363 of the Bengal Municipal Act: (2) that upon the merits the defendants were notliable. The merits admittedly were gone into in that suit, and the suit wasdecided against the present plaintiff. The present suit is for the non-removalof the offensive matter over a subsequent period; the issue, however, indispute is really identical.

2. The question we now have to decide is whether, having902] regard to Section 13 of the Code of Civil Procedure, and explanation II tothat section, the matter directly and substantially in issue in the presentsuit was heard and finally decided by a Court of competent jurisdiction in aformer suit between the same parties. I think it was. The only ground allegedfor the present suit not being barred by the plea of res judicata is that,inasmuch as the Court, in the previous suit, decided that the suit must failfor want of previous notice (I refrain from expressing any opinion as towhether, having regard to the language of Section 363 of Bengal Act III of1884, that view is sound), it became unnecessary to go into the other issues,and therefore that the merits cannot be regarded as so gone into in theprevious suit as to entitle the defendants to say that the matter of thepresent suit was "directly and substantially " in issue and beard andfinally decided in the former suit. But the answer to that argument appearstome to be that, in point of fact, the question, with the knowledge and assentof both the litigating parties, was gone into, was directly and substantiallyput in issue, and was heard and finally decided. Why was the question the less directlyand substantially in issue, and not heard or finally decided, because the Courtalso decided another point which, if right, would have decided the suit, butwhich if wrong would not have done so. The decision upon the merits formed anadditional ground for the dismissal of the suit; and both sides invited thatdecision. The plaintiff might have invited the decision of the Court upon thequestion of notice alone, and if that were given against him have declined togo into the merits. But he did not adopt that course, he allowed the merits,that is, the question of the defendants liability, to be gone into, and tookhis chance of a decision in his favour. Can he turn round now and say they werenot gone into or finally adjudicated upon The question of the liability of thedefendant to remove the offensive matter from the plaintiffs property wasclearly matter "directly and substantially" in issue in the formersuit, and it is the sole question now in issue in the present suit. In theprevious suit the plaintiff invited a decision upon the question of suchliability, and the Court gave its decision upon the matter. The petitionerplaces great reliance upon the case of Shib Charan Lal v. Raghunath I.L.R. 17All. 174. For the reasons given by Mr. Justice Banerjee, I think that case isdistinguishable; the facts in the present case are very different. The rulemust be discharged with costs.

Banerjee, J.

3. The petitioner before us, who was the plaintiff in theCourt below, asks us under Section 25 of the Provincial Small Cause Courts Actto set aside the decree of the lower Court, dismissing his suit for damagesagainst the opposite party, the Chairman of the Municipal Commissioners ofUtterparah.

4. The suit was brought by the plaintiff on the allegationthat the defendant bad wrongfully refused to remove offensive matter fromcertain property belonging to him, and that he bad consequently been obliged toincur expense for removing the same. The defence was that the defendant was notliable to remove offensive matter from the plaintiffs property, and that thequestion of the defendants liability was res judicata by reason of, its havingbeen decided against the plaintiff in a former suit brought by the plaintiff inrespect of similar damages for a previous period. The Court below has giveneffect to the plea of res judicata and dismissed the suit, without going intothe merits.

5. The learned Vakil for the petitioner contends that thisdecision is wrong, and that the judgment in the former suit is no bar to thepresent, as the decision in that suit upon the issue as to the defendantsliability was not necessary for the disposal of the case, the suit havingfailed for want of previous notice as required by Section 363 of the BengalMunicipal Act; and in support of his contention the case of Shib Charan Lal v.Raghunath I.L.R. 17 All. 174 is relied upon.

6. I am of opinion that this contention is not correct. Itis true that in the former suit the Court decided, not only the issue as to thedefendants liability, but also that as to notice, against the plaintiff; andit is true also that in the absence of proof of notice, a suit against theMunicipal Commissioners for anything done under Bengal Act III of 1884 must hedismissed under Section 363 of the Act. But in the first place, it is doubtfulwhether the former suit came under Section 363 when the suit was not for"anything done " under the Municipal Act, but for something leftundone which, according to the plaintiffs contention, the Municipality wasbound to do. And in the second place, even if that suit came under Section 363,it does not follow that, because the suit failed for want of notice, theadjudication of the Court upon the question of the defendants liability is nobar to its trial in a fresh suit when the question was raised, as it ought tohave been, by the parties in the former suit, and the decision thereon formedan additional ground for the dismissal of the suit.

7. Section 13 of the Code of Civil Procedure enacts that"no Court shall try, any suit or issue in which the matter directly andsubstantially in issue has been directly and substantially in issue in a formersuit between the same parties "---I quote only so much of the section asbears upon the question now before us---"in a Court of jurisdictioncompetent to try such subsequent suit or the suit in which such issue has beensubsequently raised, and has been heard and finally decided by such Court;" and explanation II of the section says that "any matter which mightand ought to have been made ground of defence or attack in such former suitshall be deemed to have been a matter directly and substantially in issue insuch suit." Now the question of the liability of the defendant to removefilth from the plaintiffs property was clearly matter "directly andsubstantially in issue" in the former suit, as it is in this, in everysense of the expression; and the question is, was it any the less so in theformer suit because that suit failed by reason of the decision of the Courts, uponsome other matter as well

8. When more questions than one arise in a suit, accordingto the circumstances of the case, depending upon the nature of the questionsand of the decision arrived at, it may be either necessary to decide them all,or sufficient to decide only some of them, for the disposal of the suit.

9. The first case presents no difficulty so far as the pointraised before us is concerned; but the case we have to consider is not one ofthat description. In cases of the second class, the Court may either decideonly the questions that are found necessary to decide (and in that event nodifficulty will arise) or it may decide all the questions raised.

10. In this latter class of cases again, the Court mayeither embody the result of its decision upon every question in the decree inthe form of a declaration or otherwise (and in that event too no difficulty canarise) or it may not do so.

11. Cases of this last mentioned description againsub-divide into two classes, in one of which the decree is sup __(sic)_/edecision upon each of the questions determined (and the case we have toconsider is one of that description), and in the other it is in spite of thedecision upon some of those questions, as, for instance, where a suit failsupon the question of limitation or of some preliminary notice, but the questionof title is found for the plaintiff.

12. The case we are dealing with, not being of this latterdescription, it is not necessary to consider whether the full Bench decision inNiamut Khan v. Phadu Buldia I.L.R. 6 Cal. 319 is good law, or whether it hasbeen in effect overruled by the Privy Council in Run Bahadoor Singh v. LuchoKoer I. L. R. 11 Cal. 301: L. R. 12 I. A. 23 ---a question which may be takenas settled by the cases of Nando Lall Bhuttacharjee v. Bidhu Mookhy DebeeI.L.R. 13 Cal. 17 [LQ/CalHC/1886/44] and Thakur Magundeo v. Thakur Mahadeo Singh I.L.R. 18 Cal.647.

13. The judgment in the former suit, which is here made thebasis of the plea of res judicata, determines each of the two questions raised,namely the question of notice and that of the defendants liability against theplaintiff ; and the question of the defendants liability was raised asdirectly and substantially in the former suit as it is in this. So that itcannot be said, either that the decision in the former suit upon the questionof the defendants liability was superseded by the decree by reason of thedecree being in spite of that decision, or that the question was not a directand substantial question in the case. If the question of notice had been foundfor the plaintiff, the question of the defendants liability would clearly havebeen a direct and substantial question in the case. Can it then be said that itceased to be so by reason of the decision upon the question of notice whichcame to be considered prior to the other question as being prior in point oflogical order Having regard to the language of explanation II of Section 13,quoted above, which makes any matter which might or ought to have been madeground of attack or defence come within the description of matter directly andsubstantially in issue, I find it very difficult to say that this questionshould be answered in the affirmative. It may no doubt be argued that as theplaintiff could not have taken advantage of any favourable finding in theformer judgment on the question of the defendants liability by reason of thedecree being in spite of such finding, be ought not to be held bound by anyunfavourable finding on that question. But the answer to that argument is this,that the plaintiff might well have avoided the effect of an adverse finding onthe question of liability by asking the Court to determine first the questionof notice, and not to go into the question of liability if the question ofnotice was found against him. If instead of doing that, the plaintiff led theCourt and his adversary to go into the whole question of the liability of thedefendant, presumably at considerable expense of time to: both, it is too latenow for him to complain of the result; and we should not be keeping in view thereason for the rule of res judicata which is to give finality to litigation,and to prevent any one from being twice vexed for the same matter, if we wereto hold that the decision in the former suit does not operate as res judicata.

14. There is one other point of view suggested by thelanguage of the former Judgment from which the question might be viewed. Thoughthe Court in the previous suit decided the question of notice against theplaintiff, it seems. that it came to a somewhat hesitating decision upon thatpoint, and so, to strengthen its conclusion that the suit ought to bedismissed, it went into the question of the defendants liability as well, andfound that no liability was established. If that was so, it could not be saidthat the decision upon the question of liability was not necessary for thedisposal of the suit.

15. The only authority cited in support of the viewcontended for by the learned Vakil for the petitioner is the case of Shib CharanLal v. Raghunath I.L.R. 17 All. 174. That case is, however, quitedistinguishable from the present. For the question for decision in that casewas, whether the finding as to title in favour of the plaintiff in a formersuit under Section 42 of the Specific Relief Act, which was dismissed by reasonof the plaintiff being found to be out of possession, and therefore notentitled to ask for a mere declaratory decree, could operate as res judicata ina subsequent suit, and the question was, as it ought to have been, answered inthe negative, the decree in the previous suit having been in spite of thefinding in favour of the plaintiff upon the question of title, and having,therefore, in effect superseded that finding. That is not, as I said above, thenature of the question in this case. It is true that the learned Judges intheir judgment in Shib Charan Lal v. Raghunath I.L.R. 17 All. 174 observe :"Further if there were two findings of fact, either of which would justifyin law the making of the decree which was made, that one of such two findingsof fact which should in the logical sequence of necessary issues have beenfirst found and the finding of which would have rendered the other of such twofindings unnecessary for the making of the decree which was made, is thefinding which can in our opinion operate as res judicata." And theseobservations no doubt are in favour of the petitioner. But they were notnecessary for the decision of the case; and with all respect for the learnedJudges who made those observations.

16. I am unable, for the reasons given above, to follow inthis case the rule end bodied in them. I may add that, though the decision ofeither of two issues may be sufficient for the determination of a case, andthough their logical sequence may be clear, yet where a Court does go into bothof them instead of resting its conclusion upon the decision of that one of themwhich comes prior in point of logical order, it is not always easy or safe tosay that the decision of the last mentioned issue alone was in fact necessary,and that the decision upon the other issue was superfluous.

17. When the law prohibits a second trial, not only of asuit for the same matter, but also of a direct and substantial issue in it, itis impossible to avoid the conclusion arrived at by the lower Court.

18. For the foregoing reasons, I think that the Court belowwas right in its decision, and that this rule ought to be discharged withcosts.

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Peary Mohun Mookerjeevs. Ambica Churn Bandopadbya(30.06.1897 - CALHC)