UNTWALIA, C.J.

(1.) This is a defendants second appeal which has come before us for hearing, as it was referred by a learned Single Judge of this Court for decision by a Division Bench. The case of the plaintiff respondent is that he had purchased the disputed building from the original owner. The Defendant appellant was a tenant of the suit premises from before on a monthly rental of Rs. 60, besides electric charges. After the purchase by the plaintiff, he as well as the vendor informed the defendant about the sale and asked him to pav rent. The defendant did not Pav rent since August 1959. He also made out a case that he required the suit premises for his bona fide personal necessity. The defendant had violated the terms of the tenancy. A notice to quit was given to him. but he refused to accept it and did not vacate the premises.

(2.) In 1959 this verv plaintiff had filed a suit for ejectment against this very defendant. The matter came up to the High Court and the plaintiffs suit was dismissed on technical ground of non-service of notice. The plaintiffs case is that the question of default and personal necessitv was left open. The defendant has made further default and, therefore, the present suit out of which this second appeal arises was instituted.

(3.) The defendant in his written statement denied that the plaintiff required the suit premises for his own use or that there has been any breach of the terms of the tenancy on his part. He also denied the plaintiffs assertion that the former had defaulted in payment of rent since August 1959. According to the case of the defendant, no notice was served on him.

(4.) The learned Munsif decreed the suit, holding that the defendant had defaulted in payment of rent for the months of August and September 1959. On the point of notice, a finding was recorded in favour of the plaintiff, but on the question of personal necessity and alleged breach of the terms of the tenancy, the trial Court recorded findings against him.

(5.) The defendant filed an appeal in the lower appellate Court and the plaintiff filed a cross-appeal from the decision of the trial Court on two points, viz.. (1) personal necessitv and (2) breach of the terms of the tenancy.

(6.) The learned Subordinate Judge has maintained the Judgment and decree of the trial Court on the point of notice as also on the point of non-payment of rent for two months, viz., August and September 1959, by the defendant. He has also recorded a finding in favour of the plaintiff on the question of his personal necessity for the suit premises. The finding of the trial Court as regards the alleged breach of the terms of the tenancy by the defendant has been affirmed. The defendant has come up in second appeal.

(7.) When the case came up before me when I was sitting singly on 4-11-1970 a point was raised on behalf of the defendant appellant whether in view of the dismissal of Title Suit No. 785 of 1959 the present suit was maintainable and not barred. The point had not been specifically taken in the grounds of appeal, yet, treating it as a pure question of law, it was allowed to be argued, and then the case was referred for hearing to Division Bench.

(8.) The concurrent finding of the Courts below that the defendant had defaulted in payment of rent for August and September 1959 could not be attacked, in second appeal by pointing out any error of law, nor could the finding of the lower appellate Court that the plaintiff required the suit premises for his personal use be assailed. On the point of notice also, there was no point to be urged and could not be urged. The only point which was pressed strenuouslv by Mr. R.S. Chatterji, learned counsel for the appellant, was that in view of the dismissal of Title Suit No. 785 of 1959 earlier, the present suit was barred. Learned counsel developed this point by submitting that it was barred on three grounds (1) on the around of the law of res judicata engrafted in Section 11 of the Code of Civil Procedure (hereinafter referred to as the Code). (2) because of the provision of the law contained in Order 23, Rule 1 of the Code, and (3) because of the bar provided for in Order 9, Rule 9 (1) of the Code. In support of his contention, learned counsel for the appellant placed reliance upon the following decisions, viz. Peary Mohun Mukherjee v. Ambica Churn Bandopadhya, (1897) ILR 24 Cal 900, [LQ/CalHC/1897/95] Gangappa Gurupadappa Gugwad v. Rachawwa, AIR 1971 SC 442 [LQ/SC/1970/440] : K. N. Ramakrishnan v. C. Keral Chand, AIR 1971 Mad 150 [LQ/MadHC/1970/133] and Fateh Singh v. Jagan-nath Baksh Singh, AIR 1925 PC 55 [LQ/PC/1924/77] . Mr. J. C. Sinha, while combating the argument put forward on behalf of the appellant, drew our attention to the Full Bench decision of this Court in Niranjan Pal v. Chaitanyalal Ghosh, AIR 1964 Pat 401 [LQ/PatHC/1964/76] and the decision of the Supreme Court in Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 [LQ/SC/1966/13] .

(9.) I may at the outset state, in substance, the ratio of the principles decided in the various decisions cited at the Bar. If in a suit are involved two issues, one, a technical one and the other an issue as to the merits of the suit, then, if the suit fails only on the technical ground, and the issue as to merit is not decided at all, in a subsequent suit the decision given earlier dismissing the suit will not operate as res judicata in the trial of an identical issue of merit in that suit. If. however, both the issues have been tried and the suit has failed because of the decision in the earlier suit being against the plaintiff on both the issues, then no matter whether the suit would have failed on a technical ground, the decision in an earlier suit on the issue of merits of the case would operate as res judicata in the trial of the same issue in the second suit, although the technical difficulty might have been overcome before instituting the second suit. After stating the facts of the instant case and applying the principle of law which I have just enunciated in nutshell, I shall, briefly, advert to the various decisions cited at the Bar.

(10.) Title Suit No. 785 of 1959 was dismissed by the trial Court. It held against the plaintiff on both the points, one of non-payment of rent for August and September 1959 and the other on the question of personal necessitv of the plaintiff. On appeal by him, however, both the points were decided in his favour and the suit was decreed. The defendant came up in second appeal to this Court; this was Second Appeal No. 356 of 1962. It came UP for hearing before Ahmad, J. He allowed the appeal by his judgment dated 28th March 1963 and remanded the case to the lower appellate Court for a fresh decision of the appeal filed by the plaintiff before that Court. A civil review application was filed by the plaintiff after the decision of the second appeal on 28th March 1963, on the ground of there being an apparent error of record on the face of the High Court judgment. This application came UP for admission before Ahmad. J., on 19th July 1963. It was admitted and a rule was issued. Eventually, when it came up for hearing, Ahmad, J., had ceased to be a member of this Court. The civil review application was heard and disposed of by S. N. P. Singh J. on 20th April 1965. I need not refer to other exhibits, as, for the purposes of disposing of the point in this second appeal, it will be sufficient to refer to Ext. 12, the judgment and order of S.N.P. Singh, J. in Civil Review No. 14 of 1963. It would appear from this judgment that one of the errors which was apparent on the face of the judgment of Ahmad, J. in the, second appeal was that although the lower appellate Court had set aside the finding of the trial Court on the point of non-payment of rent and had decided the point in favour of the maintiff holding that there was non-payment of rent for more than two months, Ahmad, J., assumed in his judgment that the ground of non-pavment of rent had been negatived by both the Courts below. After referring to the order of admission passed by Ahmad, J., on 19-7-1963 wherein the learned Judge was pleased to notice this error, S.N.P. Singh, J., finally said;

"In my opinion, it is not necessary to review the iudgment on the ground taken in the review application itself in view of the admitted position that no notice under Section 106 of the Transfer of Propertv Act was served on the defendant by the plaintiff before he instituted the suit. Mr. J.C. Sinha, appearing on behalf of the plaintiff-applicant, fairly conceded that his suit must fail because of want of notice under Section 106 of the Transfer of Property Act in view of the Full Bench decision of this Court in 1964 BLJR 583 = (AIR 1964 Pat 401 [LQ/PatHC/1964/76] (FB)). Mr. N.N. Roy, learned counsel appearing for the defendant-opposite party also conceded the legal position."

After having said, so, the learned Judge allowed the review application, recalled the judgment passed on 28th March 1963 in Second Appeal No. 356 of 1962 and dismissed the plaintiffs suit only on the preliminary ground that no notice under Section 106 of the Transfer of Propertv Act was served on the defendant before the institution of the suit.

(11.) It would thus be seen that the final iudgment of this Court in the Second appeal on the allowing of the review application was to dismiss the suit only on the ground of want of notice under Section 106 of the Transfer of Property Act. The judgment of the lower appellate Court, strictly speaking, on the two questions, namely, personal necessity and non-payment of rent, was not touched. If I were to apply strictly the principles of res judicata. I could have said that the trial of those two issues is barred by res judicata, because the final judgment of the lower appellate Court on the two issues of merits was in favour of the plaintiff. But I do not think that in view of the final judgment of this Court it would be quite proper and legitimate to say so. The effect of the judgment of this Court clearly, in my opinion, is to dismiss the plaintiffs suit only on the preliminary and technical ground that there was no determination of tenancy by service of notice under Section 106 of the Transfer of Property Act and that being so even if it could be assumed that the plaintiff was right in other respects, he could not get a decree for eviction.

(12.) I have, therefore, no doubt in my mind, on a careful consideration of the matter, that the earlier decision in Title Suit No. 785 of 1959 by which ultimately the suit stood dismissed does not operate as res judicata on any of the issues in the present case. The tenancy was validly determined by service of a notice under Section 106 of the Transfer of Property Act by the plaintiff before instituting the present suit. As observed by the Full Bench in the case of Niranian Pal, AIR 1964 Pat 401 [LQ/PatHC/1964/76] this is a part of the cause of action; the plaintiff cannot succeed until he proves that he has determined the tenancy in accordance with law. So far as this issue is concerned, ft was a fresh cause of action; so far as the issue of the liability of the defendant to be evicted from the suit premises on the two grounds mentioned in Section 11 (1) of the Bihar Buildings (Lease, Rent and Eviction) Control Act is concerned, the previous judgment does not operate as res judicata. The present findings are unassailable in second appeal, and, therefore, the bar of the trial of the suit urged on behalf of the appellant with reference to the law of res judicata engrafted in Section 11 of the Code must fail.

(13.) The reference to the provisions contained In Order 23, Rule 1 and Order 9, Rule 9 (1) to plead the bar to the maintainability of the second suit seems to be misconceived. The point does not merit any detailed discussion. The suit was dismissed on a technical ground, which, one can say, had the effect of rejecting the plaint under Order 7, Rule 11 of the Code. Same result will follow. But by no stretch of imagination, the dismissal of the suit can be characterised as its withdrawal by the plaintiff without permission of the Court to institute a fresh one, or its dismissal in absence of the plaintiff and in presence of the defendant, within the meaning of Order 9, Rule 8 of the Code. In the case of Peary Mohun Mukerjee, (1897) ILR 24 Cal 900 [LQ/CalHC/1897/95] the suit had been decided both on merits and on technical grounds. The Supreme Court has Pointed out in the case of Gangappa Gurupadappa Gugwad, AIR 1971 SC 442 [LQ/SC/1970/440] that "it would be open to a Court not to decide all the issues which may arise on the pleadings before it if it finds that the plaint on the face of it is barred by any law". I see no difference between a case where the plaint is rejected on that ground and when a suit is dismissed on it. If, of course, all the issues are tried and decided, then the judgment may operate as res judicata on all the issues, as seems to have been pointed out by the Supreme Court even in the case relied upon by learned counsel for the respondent in AIR 1966 SC 1332 [LQ/SC/1966/13] . The Privy Council in the case of Fateh Singh, AIR 1925 PC 55 [LQ/PC/1924/77] was concerned with the ultra vires permission granted by the trial Court without being asked for it to institute a fresh suit. In that connection, ignoring the permission granted by the learned Judge which he had no power to grant, the second suit was held to be barred because of the dismissal of the first suit. The decision of the learned Single Judge of the Madras High Court in the case of K.N. Ramakrishnan, AIR 1971 Mad 150 [LQ/MadHC/1970/133] is not of any help to the appellant. I do not think that anything has been said in this case which goes contrary to the well-settled principles.

(14.) For the reasons stated above, I hold that this second appeal must fail. It is accordingly dismissed with costs.