Roe, J.The plaintiffs in this case, Satyabadi Gountia and Udaikar Gountia, sued the defendant, Bediadhar Bar Panda, and others for recovery of possession of 14-32 acres of raiyati land. The defendant put in a plea that the suit was barred by the rule of res judicata by virtue of "the decree in Civil Suit No. 5 of 1908 of the Court of the Subordinate Judge, Sambalpur, as the presiding Judge of the Appellate Court, passing order in Appeal No. 1 of 1909 allowing withdrawal of the suit." Suit No. 5 of 1908 was a suit between the same parties. For purposes of the argument it may be taken that the matters now in issue were substantially in issue in the former suit. The case of the plaintiffs now is that the land sued for formed part of their raiyati holding and that the defendants were their under-raiyats upon these lands. The defence set up was that the defendants were never the sub-tenants of the plaintiffs but that the plaintiffs had surrendered their holding to the defendants, who, as Zemindars of the village, had entered into possession on the basis of that surrender. These were the allegations in the plaint of Suit No. 5 of 1908 and if, indeed, there was actually a decision in the former suit, it must be said that, the present suit is barred by the rule of res judicata.

2. The learned Subordinate Judge has held that the suit is so barred, his decision being based on Kali Prasanna Sil v. Pancnanan Nandi 33 Ind. Cas. 670 [LQ/CalHC/1916/120] : 23 C.L.J. 489 : 20 C W.N. 1000 : 44 C 367. That case is not distinguishable from the present case. There had been a decision on the merits in the Court of first instance and on appeal the plaintiffs as appellants had made an application u/s 373 of the CPC of 1882 for leave to withdraw from the suit, inter alia, on the ground of their inability to produce the necessary evidence in time, whereupon the Appellate Court made an order to this effect, "the appeal is dismissed with costs and the plaintiffs suit allowed to be withdrawn with leave for fresh action for the same subject-matter, if not barred." The Calcutta Division Bench held that the order of the lower Appellate Court was made without jurisdiction and upon this point followed the decisions in Kharda Co. Ltd. v. Durga Charan Chandra 5 Ind. Cas. 187 [LQ/CalHC/1909/395] : 11 C.L.J. 45 and Mabula Pardar v. Hemangini Debi 6 Ind. Cas. 629 [LQ/CalHC/1910/105] : 11 C.L.J. 512, and concluded the judgment with the following words: "Consequently that order having been made without jurisdiction a fresh suit should never have been brought, and the defend ant was perfectly competent and was within his right when he raised the point that the matter was res judicata." In the case before us the suit was dismissed upon its merits. The Court of first instance had held that "no evidence had been given that the pattah of Russels Settlement corresponds to the numbers in dispute." In the petition to withdraw the appeal and the whole suit this omission was described as a formal defect. An order was made upon this petition that the appeal might be withdrawn and the suit dismissed with permission to bring a fresh suit. It was not definitely stated in that order that the defects referred to in the petition were to be regarded as formal defects.

3. The facts seem to be widely different from those of the case of Robert Watson & Co. v. Collector of Zillah Rajshahye 13 M.I.A. 160 : 12 W.R.P.C. 43 : 3 B.L.R.P.C. 48 : 2 P.C.J. 269 : 2 P.C.J. 500 : 20 E.R. 511. At the same time the principle on which that case was decided affords good authority for the view taken in the case of Kali Prasanna Sil v. Panchanan Nandi 33 Ind. Cas. 670 [LQ/CalHC/1916/120] : 23 C.L.J. 489 : 20 C W.N. 1000 : 44 C 367. The plaintiffs had brought a suit to establish their title to a patni taluk. The first issue framed was on the question of the locus standi of the plaintiffs and upon this question a commission had been issued. That commission had been returned with a certificate that the witnesses had not been presented for examination, and the Judge finding no excuse for the plaintiffs neglect had dismissed their suit for want of evidence, but at the same time had recorded that the order was not intended to bar the plaintiffs from proceeding as if the action had not been brought. The plaintiffs had appealed to the Saddar Court of Calcutta, and their Lordships of that Court had stated: "It appears to us that we must look upon the judgment of the lower Court as determining that the plaintiffs had failed to establish their title to sue; and that an order of dismissal was pronounced upon the evidence." The appeal was heard as a regular appeal. The Court was unanimously of opinion that the plaintiffs had entirely failed to make good their grounds of appeal, as to inability to produce their witnesses. The appeal was, therefore, dismissed. A fresh suit was brought, resulting in an appeal to the Privy Council. The Judicial Committee were of opinion that the decree in the former suit was in effect a dismissal of the suit upon the merits notwithstanding the reservation contained in the original decree. The ground for so holding was that there was no provision in the Indian law for what is known in England as a non-suit. In all those cases," their Lordships say, "the suit fails by reason of some point of form, but their Lordships are aware of no case in which, upon an issue joined, and the party having failed to produce the evidence which he was bound to produce in support of that issue, liberty has been given to him to bring a second suit, except in the particular instance that is now before them." The case which gave rise to the plea of res judicata had been decided in 1856. The first CPC is dated 1859, The provision for withdrawal with permission to bring a fresh suit was in that Code even more widely framed than Section 373 of the Code of 1882. Nevertheless the Judicial Committee held that the dismissal of a suit for failure to bring the necessary evidence was in fact a failure on the merits notwithstanding a reservation made that a fresh suit might be brought. The more recent decisions on the question of res judicata seem to depend more closely on the question whether the point in issue has been previously decided or not. The leading case is that of Sheosagar Singh v. Sitaram Singh 24 I.A. 50 : 24 C. 616 : 1 C.W.N. 297 : 7 P.C.J. 124 : 12 Ind. Dec.1079 (P.C.). At page 58 their Lordships said: "To support a plea of res judicata it is not enough that the parties are the same and that the same matter is in issue. The matter must have been heard and finally decided. If there had been no appeal in the first suit the decision of the Subordinate Judge would no doubt have given rise to the plea. But the appeal destroyed the finality of the decision. The judgment of the lower Court was superseded by the judgment of the Court of Appeal. And the only thing finally decided by the Court of Appeal was that in a suit constituted as the suit of 1885 was, no decision ought to have been pronounced on the merits." In referring to the history of the previous litigation at page 54 their Lordships have pointed out that, "though the learned Subordinate Judge had made a decree upon the merits, the judgment of the Appellate Court had proceeded expressly on the footing that it was not necessary to come to a decision on the question at issue and so the appeal was dismissed". To even stronger effect is the decision of the Judicial Committee in Parsotam Gir v. Narbada Gir 21 X. 505 : 1 Bom. L.j 700 : 3 C.W.N. 517 : 26 I.A. 175 : 7 P.C.J. 53 : 9 Ind. Dec. 1028 (P.C.). At page 513 it is said: The question is not whether the judgment of the High Court in 1886 was right, but whether it did or did not finally decide the present question as between Nepal Gir and Narbada Gir. It would be a contradiction in terms to say that the Court had finally decided matters which it expressly left untouched ". As I understand these two decisions there has been no attempt therein to modify the decision in the case of Robert Watson fy Co. v. Collector of Zillah Rajshahye 13 M.I.A. 160 : 12 W.R.P.C. 43 : 3 B.L.R.P.C. 48 : 2 P.C.J. 269 : 2 P.C.J. 500 : 20 E.R. 511. If a suit is dismissed on the ground that as constituted it could not succeed, the dismissal is not res judicata, however erroneous may be the idea that the frame of the suit barred a decision. If it is dismissed for want of evidence, the decision is final. As held in the case of Kharda Co., Ltd. v. Durga Charan Chandra 5 Ind. Cas. 187 [LQ/CalHC/1909/395] : 11 C.L.J. 45 and Mabulla Sardar v. Hemangini Debi 6 Ind. Cas. 629 [LQ/CalHC/1910/105] : 11 C.L.J. 512, the Court of Appeal has no jurisdiction to dispose of a suit properly constituted otherwise than on the merits. In the case before us the petition of the appellant in the previous action, asking leave to withdraw the appeal on the ground that he had not been able to adduce evidence necessary for the substantiation of his case, was a clear admission that the decision of the lower Court could not on the merits be assailed. The suit finally stood dismissed not -on the ground that there was any formal defect in the pleadings, but on the ground that the Court below could not on the evidence before it have made a decree in the plaintiffs favour. I am not prepared to hold that the decision of the Subordinate Judge may be ignored as being without jurisdiction for; if that be so, the appeal has not in fact been heard, and there has been no decision at all, and the point in issue is still open between the parties. I am of opinion that the appeal was heard, and that the decision of that appeal was that the evidence on the record was not sufficient to support the plaintiffs case. In this view of the matter I oonour in the view taken by the Court below that the question in issue has been decided in a previous suit, and would dismiss this appeal with costs.

Chapman, J.

4. I agree.