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The Province of Bombay Vs. the Municipal Corporation of Ahmedabad - Court Judgment

LegalCrystal Citation
SubjectMunicipal Tax
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal No. 36 of 1948
Judge
Reported inAIR1954Bom1; (1953)55BOMLR670; ILR1953Bom1081
ActsCode of Civil Procedure (CPC), 1908 - Sections 11 - Order 2, Rule 2 - Order 6, Rule 2 - Order 14, Rule 1(2) - Order 21, Rule 2; Bombay Land Revenue Code - Sections 45, 128, 131, 216 and 217; Bombay Land Revenue Rules - Rules 13, 14 and 53; Bombay District Municipal Act, 1901 - Sections 50; Bombay Municipal Boroughs Act, 1925 - Sections 63; Limitation Act, 1877; Limitation Act, 1871 - Schedule - Article 131; Bhagdari Act; Specific Relief Act - Sections 9; Khoti Settlement Act, 1880 - Sections 9; Local Government Act, 1919 - Sections 33 and 153(3); Land Tax Assessment Act, 1910 - Sections 38(7); Chota Nagpur Encumbered Estates Act, 1876 - Sections 2, 3(4) and 12A; Bombay Tenancy Act - Sections 5; Code of Civil Procedure (CPC), 1882 - Sections 13; Estates Land Act - Sections 3(4); Poor Relief
AppellantThe Province of Bombay
RespondentThe Municipal Corporation of Ahmedabad
Appellant AdvocateR.B. Kotwal, Adv.
Respondent AdvocateD.V. Patel, Adv.
Excerpt:
- - the learned assistant judge came to the conclusion that this decision barred the present suit by the doctrine of 'res judicata'.the order of the collector was consequently 'ultra vires'.2. the government of the province of bombay have come in appeal, and it appears to us, in the first instance, that the learned trial judge as well as the learned appellate judge was quite correct in holding that the land in question was liable to pay enhanced assessment. that section continues exemptions which were in existence at the time when it was enacted, and one of the exemptions which was in force at the time when it was enacted was in respect of land in sites of towns and cities like the city of ahmedabad. in the suit which was decreed 'ex parte' against govind, govind had failed to take up.....bavdekar, j.1. this is a letters patent appeal arising from a suit which had been filed by the borough municipality of ahmedabad in respect of 60 1/2 square yards of public street land which had vested in the municipality as street land. it appears from the evidence that the municipality converted the piece of land by its incorporation in meat shops, and the commissioner thereupon assessed the land to payment of non-agricultural assessment and made an order that the amount of assessment should be recovered.the municipality filed the suit from which the present appeal arises challenging the assessment and contending that they were, as a matter of fact, not liable to pay the assessment which had been imposed. the learned assistant judge, who heard the first appeal, came to the conclusion.....
Judgment:

Bavdekar, J.

1. This is a Letters Patent appeal arising from a suit which had been filed by the Borough Municipality of Ahmedabad in respect of 60 1/2 square yards of public street land which had vested in the Municipality as street land. It appears from the evidence that the Municipality converted the piece of land by its incorporation in meat shops, and the Commissioner thereupon assessed the land to payment of non-agricultural assessment and made an order that the amount of assessment should be recovered.

The Municipality filed the suit from which the present appeal arises challenging the assessment and contending that they were, as a matter of fact, not liable to pay the assessment which had been imposed. The learned Assistant Judge, who heard the first appeal, came to the conclusion that the decision of the trial Judge that the land was liable to pay non-agricultural assessment under Section 45 of the Land Revenue Code was a correct decision.

The trial Judge had dismissed the suit holding that Art. 14, Limitation Act, applied and the suit was barred by limitation. The learned Assistant Judge did not go into that question; but he held that it was not necessary for him to go into the question of limitation, because prior to his decision there had been a final decision in another similar suit between the Borough Municipality of Ahmedabad on the one hand and the Provincial Government of Bombay on the other holding that in a similar case where a piece of land 92 square yards in extent from another street had been converted to use as a fish market it was not liable to pay non-agricultural assessment.

The learned Assistant Judge came to the conclusion that this decision barred the present suit by the doctrine of 'res judicata'. The order of the Collector was consequently 'ultra vires'.

2. The Government of the Province of Bombay have come in appeal, and it appears to us, in the first instance, that the learned trial Judge as well as the learned appellate Judge was quite correct in holding that the land in question was liable to pay enhanced assessment. Under Section 45, Land Revenue Code, all land is liable to pay assessment unless exempted either by a contract or by any particular law. The street land which has beenconverted to a non-agricultural land in the present case was exempted from any assessment as long as it was a street land under the provisions of Section 128, Land Revenue Code.

That section continues exemptions which were in existence at the time when it was enacted, and one of the exemptions which was in force at the time when it was enacted was in respect of land in sites of towns and cities like the city of Ahmedabad. In such villages both land which was privately occupied and land which was used as streets were exempt from assessment. The learned advocate, who appears on behalf of the Government says that there is nothing whatsoever to show that street land was exempt from assessment only as long as it was used as street land.

Section 45 says that all land is liable to pay assessment. In case it was the contention of the Borough Municipality that street land was exempt from assessment, whether it was street land or whether it ceased to be a street land, it was necessary for them to show some provision of the law under which it was so exempt. The Borough Municipality of Ahemedabad are unable to show any provision under which the street land could be held to be exempt once it ceased to be used as a street land. It must, therefore, be taken that the land was liable to pay assessment.

2a. Now, the question of the application of Section 45 does not dispose of the whole of the question between the parties. Section 45 merely says that all land will be liable to assessment; but we find that under Rr. 13 and 14, Bombay Land Revenue Rules, non-agricultural assessment can be levied upon land which is not exempt from assessment & which is included in the area to which a survey is extended under Section 131. It is not in dispute that a survey has been extended to the site of the City of Ahmedabad under the provisions of this section. Under Rule 14, Land Revenue Rules, the Collector is entitled to assess such land at the same rate and for the same period as if he were altering an agricultural assessment under whichever of Rr. 81 to 85 has been applied to the locality.

The learned advocate, who appears on behalf of the Borough Municipality of Ahmedabad, says that this assessment is to be made upon the introduction of a survey under Section 131. Some lever is given to this contention, because Rule 14 says 'the Collector on receipt of a schedule of the lands'; but we do not think that it was the intention that where land was liable to assessment under the provisions of Rule 13 it should escape assessment merely because no assessment was levied on it either because it was exempted from payment of land revenue as long as it was used as street land or because it had through oversight escaped assessment.

In our view, the powers of the Collector could be used at any time after the survey was extended to the site of a town or village under Section 131. Consequently land in the present suit was liable to pay non-agricultural assessment. The only question then which remains to be determined is whether the finding that the present suit was barred by 'res judicata' because of the decision in suit No. 907 of 1942 in the Court of the 9ivil Judge of Ahmedabad is correct.

3. Now, what has happened in the former case was that the Municipality had converted 92 square yards of street land to the use of a fish market and the Commissioner thereupon, as in the present case, proposed to levy assessment. The Borough Municipality thereupon filed a suit No. 997 of 1942 challenging the assessment and claiming that they were not liable to pay any assessment,agricultural or non-agricultural. The trial Court decided the suit in the plaintiff's favour; when the matter went in appeal to the learned appellate Judge, he raised an issue, which is in the following terms;

'Is the action of the Collector of Ahmedabad in levying non-agricultural assessment on the public street land of 92 square yards utilised by the plaintiff respondent Municipality for the use of the fish market at Ahmedabad legal as contended on behalf of the defendant appellant the Government of Bombay?'

The finding which was given upon the point wag in the negative. The learned Assistant Judge relied in support of this contention upon a passage in Mr. Gupte's Bombay Land Revenue Code to the effect that

'Lands vesting in a Municipality under Section 50 of the Bombay District Municipal Act, 1901, and section 63 of the Bombay Municipal Boroughs Act, 1925, and not reserved under Rule 53 of the Bombay Land Revenue Rules are exempt from payment of non-agricultural assessment.' The learned Judge then went on to observe: 'In view of the circumstance that the defendant appellant, Government of Bombay, has nothing to do with the ownership of the land in dispute, I think it is not entitled to levy any non-agricultural assessment on the same under the provisions of section 45 of the Bombay Land Revenue Code.'

He, therefore, dismissed the appeal filed by the Government of Bombay. It is contended by the Borough Municipality of Ahmedabad that, because of the finding recorded in that suit, the present suit is barred by 'res judicata'. The finding which was recorded actually was that the action of the Collector of Ahmedabad in levying non-agricultural assessment on the public street land of 92 square yards utilised by the Borough Municipality for the use of the fish market at Ahmedabad was not legal.

It is conceded that the land in the present suit was not included in the prior suit. It is also contended that, as a matter of fact, the land forms part of an entirely different street. It is said, however, that the view which was taken in that suit wag that the land which had vested in the Municipality under Section 50, Bombay District Municipal Boroughs Act, 1901, & Section 63, Bombay Municipal Boroughs Act, 1925, and not reserved under Rule 53, Bombay Land Revenue Rules, are exempt from payment of non-agricultural assessment. No one can quarrel with the proposition if the proposition was understood in the sense that these lands were exempt from assessment if any exemption could be claimed in respect of them; for example, on the ground that the land was street land which had been exempt from revenue at the time of the enactment of Section 123, Bombay Land Revenue Code.

But the learned advocate, who appears on behalf of the Borough Municipality, says that the view which the learned Judge took of the law was that the lands vesting in a Municipality under Section 50, Bombay District Municipal Act, 1901, and Section 63, Bombay Municipal Boroughs Act, 1925, and not reserved under Rule 53, Bombay Land Revenue Code were exempt from payment of non-agricultural assessment, irrespective of whether there could be claimed in regard to them exemption under any of the provisions of the Land Revenue Code or the Land Revenue Rules, and the contention which he makes is that in any suit between the Municipality of Ahmedabad on the one hand and the Government on the other, which may arise hereafter fordecision, it must be taken, unless there is in the meanwhile a change in the law effected by the Legislature, that the proposition of law enunciated in the decision of the learned Assistant Judge is a correst proposition.

4. Now, the question as to whether an issue of law is 'res judicata inter partes', and if so in what circumstances, has been the subject-matter of a large number of decisions, whether of this Court or of other Courts.

The matter came up for decision in this Court for the first time in -- 'Chamanlal v. Bapubhai 22 Bom 669 (A). In that case the plaintiff had brought a suit to recover eleven years' arrears of his share in a certain Government allowance received by the defendants, and prayed for an order directing the defendants to pay him and his heirs his proper share in future. The defendants contended that under the Limitation Act (XV of 1877) only three years' arrears could be recovered. In a previous suit brought by the plaintiff in 1874 against the same defendants it was decided by the High Court that twelve years' arrears could be recovered.

The lower Court held that this decision continued to bind the parties, and that, therefore the present claim should be allowed. It passed a decree accordingly. It was held by this Court that a point of law though decided in a suit between the same parties can never be 'res judicata'. This decision has been modified to some extent by cases of this Court where it has been held that even a decision which is confined to a decision of a pure point of law will bar by 'res judicata' the agitation of the same question if the cause of action is the same. But apart from this variation, the decision is binding, and so far as I am aware, it has not been overruled in any particular case.

5. The learned advocate, who appears on behalf of the Borough Municipality, says that the ratio of this decision is not that the point of law can never be 'res judicata', though that is so stated in the headnote of the judgment. He says that the suit which came up before their Lordships had to be decided under the Limitation Act, 1877, whereas the prior suit which had been filed by the plaintiff was governed either by Act 14 of 1859 or Act 9' of 1871. Now, this is quite true; but it does not appear to me that there had been any change of law.

It was true that the Act had changed, but Art. 131 of Act 9 of 1871 which must have been applied was reproduced in the Act of 1817 in the same words; there is nothing whatsoever to show that an article more special than Art. 131 of Act 9 of 1871 was enacted by the Act of 1877. It does not appear, therefore, that in -- 'Chamanlal v. Bapubhai', (A) the decision proceeded on the ground that the same article applied, but the period was reduced or that the inclusion of a new article in the schedule prescribed a different period of limitation.

The argument addressed to us on behalf of the Ahmedabad Municipality is that if the Court decided that a particular suit was barred by limitation on the ground that a particular article applied, the decision as to the application of the article to suits of that kind would always be binding 'inter partes'; but -- 'Chamanlal's case (A)' seems to hold that when it was a question of a different suit between the parties, it could not possibly be held that the same article applies and that is, irrespective of there being no change in the law effected by legislation in the meanwhile.

(6) The next case of this Court to which It would be necessary to refer is -- 'Chhaganlal v. Bai Harkha', 33 Bom 479 (B). In that suit oneGovind Khodabhai had executed a possessory mortgage of certain bhagdari land in favour of the plaintiff. On the same day Govind passed a tenancy agreement to the plaintiff whereby he took the land as lessee for a certain period, Further agreements were executed by Govind, the last being of 18-9-1902, for one year. After the expiry of that year Govind continued in possession of the land until his death in June 1905.

On his death his widow cultivated the land on behalf of herself and her minor son. The plaintiff brought the suit, which came up to this Court in -- 'Chhaganlal's case (B)', for the recovery of the rent of the land for two years, namely 1904-5 and 1905-6. A contention was then taken that the mortgage transaction and the transaction of lease were one and the same transaction and both were invalid under the Bhagdari Act, because the alienation effected was that of an unrecognised portion of a bhag.

The plaintiff met this contention by saying that when he sued Govind for rent in respect of the years 1902-3 and 1903-4, Govind never took up ft contention that the mortgage and the rent note were illegal transactions. It could not, therefore, be contended that they were illegal transactions subsequently by Govind's representatives.

7. Now, this case does not show that a point of law can be 'res judicata' between the parties apart from the facts to which the point of law was applied. In the suit which was decreed 'ex parte' against Govind, Govind had failed to take up a contention that the mortgage and the rent-note were illegal transactions. It had, therefore, to be taken that those transactions were, as a matter of fact, legal transactions. The effect of the decision was that the provisions of the Bhagdari Act had to be taken as not applying to those transactions.

But the case of -- 'Chhaganlal v. Bai Harkha', (B) did not decide that the provisions of the Bhagdari and Narwadari Act could not be applied to any other piece of land which might have been similarly mortgaged by Govind to the plaintiff by a different mortgage and which was taken on lease by Govind upon a different rent-note. What was held was that it must be taken that in the 'ex parte' decree a finding had been arrived at that the transactions of the mortgage of 1903 and the rent-note of that year were legal transactions, and what the principle of 'res Judicata' requires is that the same findings must be taken in the suit which the plaintiff filed for the rent of the subsequent years; the findings which were to be taken as unchallengeable in the next suit were not pure findings of law divorced from any fact; the findings were that the mortgage of 1903 and the rent-note of 1903 were legal transactions, and it was these findings which had to be taken as incontrovertible in a subsequent suit not that the Bhagdari Act did not apply to any other transactions which might have been effected by Govind of other Bhagdari land.

It is obvious, therefore, that this case is no authority for the broad proposition that a finding of law would bar, by 'res judicata' the agitation or the same issue of law in a different suit between the same parties. The cases to which it is necessary to refer hereafter are cases of -- 'Ahmed Bhauddin v. Babu AIR 1930 Bom 135 (C);'Keshav v. Gangadhar AIR 1931 Bom 570 (D); --'Savitri v. Holebassappa AIR 1932 Bom 257 (E) and -- 'Mahadevappa Somappa v. Dharmappa Sauna : AIR1942Bom322 (P).

8. Now, in the case of -- 'Ahmed Bhauddin v. Babu (C)', the plaintiffs and defendants Nos. 13to 15, who were occupancy tenants in a khoti village, had mortgaged their lands with possession to defendants Nos. 1 to 12, on 24-8-1870. The mortgagors sold their equity of redemption to the mortgagees on 9-10-1882; but the sale was void as contravening Section 9, Khoti Settlement Act, 1880, as it then stood. The mortgagees remained in possession of the lands till 1915, when the mortgagors recovered possession by a possessory suit under Section 9, Specific Relief Act. In 1918, the mortgagees filed a suit to recover possession from the mortgagors, and succeeded in obtaining possession, the trial Court holding that the mortgagees had acquired a title to the property by adverse possession for more than twelve years since the date of the sale in 1882 which was binding on the mortgagors, and the High Court, leaving open the question whether the mortgagor's right to redeem the mortgage of 1870 was barred by the sale-deed.

On 21-10-1924, the mortgagors having filed a suit to redeem the mortgage, it was contended that the suit was barred by 'res judicata' and that the mortgagors were estopped from denying that they had a right to sell the property. It was held that the mortgagees having recovered possession in the previous litigation on the strength of the sale-deed, the plaintiff could not, in the second suit, seek to recover the possession back on the ground that the sale-deed did not convey any rights to the mortgagees as purchasers, and that, therefore, the mortgagors were barred by 'res judicata'.

This case again is no authority for the proposition that an issue of law determines a legal principle finally between the parties for all time if it is decided in one way between them. It is true that the view which was taken in the decision is that the earlier decision involved a finding that the sale-deed which had been executed by the mortgagors in favour of the mortgagees was a valid sale-deed, and if the sale-deed was a valid sale-deed, the suit for redemption could not lie; but what was held as decided between the parties for all time was that the sale-deed effected by the mortgagors in favour of the mortgagees on 9-10-1882, was a valid sale-deed, not that any particular construction of law which rendered the sale-deed a valid sale-deed was binding as between the parties in any subsequent suit when the validity of a different mortgage was in dispute.

The principle that it does not affect the question of a bar of 'res judicata' whether a decision is right or wrong or whether it is right on a question of fact or whether it is wrong on a point of law has any amount of authority in support of it, and the case of -- 'Ahmed Bhauddin v. Babu', (C) reiterates the same proposition. What the case has held was that whether the finding which must be taken as recorded in the prior suit that the sale of 1882 was a valid sale-deed was a right finding or a wrong finding, or whether it was wrong on a point of law, has no reference to the question as to whether the agitation of the same question would be barred by 'res judicata'; but it is no authority for the proposition that the construction of law upon which alone the finding could be said to be correct was binding between the parties in subsequent suits having no connection whatsoever with the former suit.

The cases of -- 'Keshav v. Gangadhar', (D) and -- 'Savitri v. Holebasappa', (E) qualify the very broad proposition which was mentioned in --'Chamanlal v. Bapubhai', (A) by saying that the decision on an issue of law operates as 'res judicata' if the cause of action in the subsequent suit is the same as in the previous suit, and that was also said in the case of -- 'Mahadevappa Somappav. Dharmappa Sanna', (F). A case of their Lordships of the Privy Council, namely, -- 'Broken Hill Proprietary Co. v. Broken Hill Municipal Council 1926 AC 94 (G), was followed in the last mentioned case; but it would be convenient to go to the consideration of that case later.

Now, all the three cases, namely, the cases in --'Keshav v. Gangadhar (D)',--'Savitri v. Holebasappa (E)', -- 'Mahadevappa Sommappa v. Dharmappa Sanna (F)', are binding upon us, & in case we were inclined to differ from any of them, the only thing to do would be to refer the matter to a Full Bench; but the proposition of law which has been stated in these cases, namely, that if the cause of action is the same, then an issue of law which has been decided in determining the previous suit cannot be agitated by the parties in a subsequent suit upon the same cause of action, must be accepted as a correct proposition, though I myself would not put the principle underlying the decisions in these words. It would be an entirely different matter, however, if the decision were to be taken to imply that an issue of law cannot be 'res judicata' between the parties, unless the cause of action is the same; but I do not think that that is what the cases themselves decide.

9. Now, if the cause of action is the same, then either the suit is the same suit or the suit is one which will come within the purview of Order 2, Rule 2; if the suit is the same suit, then there will be bar under Section II, Civil P. C., inasmuch as the section says that 'no Court shall try any suit in which, the matter directly and substantially in issue has been directly and substantially in issue in a former suit'. If, on the other hand, the suit is for a claim arising upon the same cause of action in respect of which the plaintiff has omitted to sue in the earlier suit, or if the suit is in respect of a relief on the same cause of action in respect of which the plaintiff has omitted to sue in the former suit, then the suit would be barred under the provisions of Order 2, Rule 2.

I fail to understand how upon the same cause of action there can be any other kind of suit, unless by law enacted after the decision of the first suit greater or a different kind of relief is provided in respect of the same cause of action, in which case the subsequent suit may not be barred under Order 2, Rule 2. Consequently, if the cause of action is the same, except in the cases last mentioned, either the suit will be the same and barred under Section 11, or the suit will be for a claim or a relief omitted, when it will be barred by Order 2, Rule 2, and the proposition laid down in -- 'Ahmed Bhauddin v. Babu', (C) and cases following it will be useful only in a limited number of cases.

Another reason why I would myself not lay down the proposition in these terms is that in the cases of -- 'Ahmed Bhauddin v. Babu (C)', -- 'Keshav v. Gangadhar (D)', -- 'Savitri v. Holebassappa (E)', and -- 'Mahadevappa v. Dharmappa (F)', the cause of action in the second suit was really not the same. It has been pointed out in several cases on this subject that it is necessary to be extremely careful when using the words 'cause of action'. A cause of action strictly so called is speaking roughly the same only when the same evidence will sustain both the suits, and a perusal of the cases mentioned just above will show that in none of these was the cause of action the same.

Other High Courts both in England and India have had no difficulty in holding that there was a bar when the cause of action was not the same and what was decided in the former case was onlya point of law though in England the term 'res judicata' is confined to the cases where the 'res', i.e., the cause of action is the same and in other cases the bar is called the bar of estoppal by record : see -- 'Tarini Charan v. Kedar Nath', : AIR1928Cal777 (H) and -- 'Ramachandrarao v. Ramamurty AIR1933 Mad 925 (I). If we examine the Bombay cases in which it has been held that there was a bar to the trial of an issue, even an issue of law, it will be found that though the cause of action was different the matter in issue in the issue which it was held could not be tried again was the same; e.g., in -- 'Savitri v. Holebasappa (E)', the matter in issue of the issue was whether a money payment under a deed was dependent upon performance of worship at a certain temple.

The true principle of these decisions could, therefore, be stated as the matter in issue in the issues involved being the same. The principle that there can be the bar of 'res judicata' even where what was decided in the former suit was a pure issue of law will be found stated in Halsbury's Laws of England, Vol. XIII, Art. 464, last para. (p. 410):

'... .And this principle applies, whether the pointinvolved in the earlier decision, and as to which the parties are estopped, is one of fact, or one of law, or one of mixed law and fact.'

In support of this case Halsbury refers to two cases: -- 'In re Graydon: Ex parte Official Receiver', (1896) 1 QB 417 (J) and -- 'Jones v. Lewis (1919) 1 KB 323 (K). It must be mentioned at this stage that the actual point in the case of -- 'Jones v. Lewis (K)' was different. It states the principle of law in support of which it is quoted in Halsbury only incidentally as follows (p. 344):

'......No question of fact which was directly inissue between the parties to the action before Bray J., and which was decided by him, could be further litigated by either party, and the same would apply to the exact point decided by Bray J., whether it were a point of law or of mixed law and fact.'

I understand these observations to mean that assuming that in an earlier suit it was decided that a particular adoption which it was admitted had taken place was invalid on some legal ground, it could not be said in a later suit that that particular adoption was not invalid, because there had been an error on a point of law committed in holding it as invalid, and what was decided was a pure point of law.

10. So far as this Court is therefore concerned, there is authority in -- 'Chamanlal v. Bapubhai (A)', for saying that a point of law cannot operate as 'res judicata' between the parties when it is divorced from the facts to which it was applied. To make the meaning clear again I would mention that supposing in an earlier suit it was decided that a particular suit was governed by a particular article of limitation it could not be challenged in a later litigation that that suit was governed by a different article; but it could not be said that if a similar suit was filed by the plaintiff against the defendant and the suits were in all respects exactly the same being based on similar but different causes of action that the same article had to be applied because of the principle of 'res judicata'.

11. It is necessary now to examine the present case in order to determine whether, in the first instance, the case will fall within the principle which was enunciated in the cases of -- 'Keshav y. Gangadhar (D)', -- 'Savitri v. Holebassappa (E)' and -- 'Mahadevappa v. Dharmappa (F)', that is, whether it could be said that the causes of actionin the two suits are the same, and in my view it cannot possibly be said that the causes of action in the two suits are the same. The cause of action in the earlier suit was the levy or the attempted levy by the Collector of non-agricultural assessment upon a different piece of land forming part of a different street. The cause of action for that suit had certainly arisen in that suit at that time.

We do not know whether, as a matter of fact, at the time when the cause of action arose in the earlier suit the cause of action in the present suit had arisen or not; but even if it had arisen, it is obvious that where a different piece of land forming part of a different street is used for a different purpose, though it may be that in both the cases the purpose was use as a market, the causes of action in the suits are entirely different.

12. The learned advocate, who appears on. behalf of the Government, says that when the words 'cause of action' were used in the cases of --'Keshav v. Gangadhar (D)', -- 'Savitri v. Holebesappa (E)' and -- 'Mahadevappa v. Dharmappa (F)' what this Court meant was the cause of action in the proceedings in which these words were used in the earlier Code of Civil Procedure, and in support of this contention he relies upon the case of -- 'Krishna Behari v. Brojeswari 2 I A 283 (L). Now, that was a case under Act 8 of 1859, and the section which enunciated the principle of 'res judicata' was embodied in Section 2 of that Act which ran as follows:

'The Civil Courts shall not take cognizance of any suit brought on a cause of action which shall have been heard and determined by a Court of competent jurisdiction in a former suit between the same parties or between parties under whom they claim.'

Their Lordships of the Privy Council said that (p. 285)

'the expression 'cause of action' cannot be taken in its literal and most restricted sense. But however that may be, by the general law where a material issue has been tried and determined between the same parties in a proper suit, and in a competent Court, as to the status of one or them in relation to the other, it cannot,..... be again tried in another suit between them.'

Now, in my opinion, there is nothing whatsoever to show that when in -- 'Ahmed Bhauddin v. Babu (C)'. -- 'Keshav v. Gangadhar (D)', -- 'Savitri v. Holebasappa (E)', and -- 'Mahadevappa v. Dharmappa (F)', this Court used the expression 'cause of action', it was in the sense in which it was interpreted in the case of -- 'Krishna Behari v. Brojeswari (L)'; but if it was used in that sense, then the principle of these cases really is that there is a bar between the same parties even upon a point of law where the facts to which the law is sought to be applied are the same in the former and the later suit.

13. It would be necessary to consider now whether, apart from this Court, there is any authority for the proposition which has been enunciated before that divorced from the facts of the earlier suit a point of law becomes binding between the parties in any subsequent suits which might arise between them.

It would be convenient first to go to the English cases, though it is necessary to mention that in England the word 'res judicata' is used in a somewhat different sense in which it is used in this country. There cannot be in England a bar of 'res judicata' unless the same cause of action is put in issue in the second suit as was put in issue in the first. What the English juriststherefore call the bar of 'res judicata' is the bar created by the use of the word 'suit' in s. 11 and also the bar created by Order 21, Rule 2. Even in England there can be a bar on analogous principles,even though the cause of action is not the same, and Halsbury in Vol. XIII, Art. 464, page 409, mentions the bar as the bar of 'estoppel';

'But, provided a matter in issue is determined with certainty by the judgment, an estoppel may arise where a plea of 'res judicata' could never be established; as where the same cause of action has never been put in suit. A party is precluded from contending the contrary of any precise point which, having been once distinctly put in issue, has been solemnly found against him.

Though the objects of the first and second actions are different, the finding on a matter which came directly (not collaterally or incidentally) in issue in the first action is conclusive in a second action between the same parties and their privies. And this principle applies, whether the point involved in the earlier decision, and as to which the parties are estopped, is one of fact, or one of law, or one of mixed law and fact,'

The learned advocate, who appears on behalf of the Borough Municipality, has no quarrel with this proposition of law; but he says, in the first instance, that when the words 'point of law' are used in the article, it is intended to mean the point of law as divorced from the facts of the first suit. For example, if the finding in the prior suit is that the suit is barred by a particular article of limitation, he says that the point which has been decided to be taken is, assuming that the former suit is a suit upon a promissory note, what is the article which applies to suits upon promissory notes.

Whereas I would suggest that the correct interpretation of the words 'point of law' is whether the particular suit is governed by a particular article of limitation. It will be necessary now to go to the eases which have been mentioned either by Halsbury or otherwise in support of this proposition of law, and I shall take, in the first instance, the case in (1926) AC 94 (G)'. This case has been followed by this Court subsequently in -- 'Mahadevappa Sommappa v. Dharmappa Sauna (F)' and it has also been followed recently by the Calcutta High Court in -- 'Santosh Kumar v. Nripendra Kumar', AIR 1949 Cal 430 (M).

The Local Government Act, 1919, of New South Wales, provided by Section 153, sub-s. (3), that the unimproved capital value of a mine for rating purposes, when ascertained by valuation based on output, shall be a sum equal to twenty per centum of the average annual saleable value of the ore won during the three years next preceding the year inwhich the valuation was made, or during such part of that time as the mine had been worked. The appellants' mine was worked during the years 1919, 1920 and 1921 during 205 days only owing to strikes and the low price obtainable for ore, though maintenance was continued during the whole period.

It was held that the average annual value was to be ascertained by dividing the value of the output during the three years by three, not by multiplying it by 205 and dividing it by 365. It was pleaded on behalf of the respondents that the decision by an earlier suit constituted a bar between the parties as to the question of a previous order. Lord Carson, who delivered the judgment of the Board, said that there could not be a bar of 'res judicata'. He said (p. 100):

'....It has been pointed that no such question was raised or pleaded either before the DistrictCourt or the Supreme Court in New South Wales, nor has there been any adjudication or finding upon it. There is, however, no substance in this contention. The decision of the High Court related to a valuation and a liability to a tax in a previous year, and no doubt as regards that year the decision could not be disputed. The present case relates to a new question--namely, the valuation for a different year and the liability for that year. It is not eadem questio, and therefore the principle of res judicata cannot apply.'

In my view, this case is a clear authority for the proposition that in England a point of law cannot possibly conclude the parties by the principle of 'res judicata' in a subsequent litigation not based upon the same cause of action when the facts to which the law is to be applied are different. It is true that in England, as I have already mentioned, 'res judicata' means whether the causes of action are the same, and when Lord Carson used the words 'that the principle of 'res judicata' cannot apply' what he probably meant was that the principle as it was understood in England did not apply, because in England it could only apply where the cause of action is the same.

It has got to be remembered however that the dispute between the parties was as regards to the method of taxation whether the output was to be calculated by dividing it by the number of years during which it was derived or by multiplying it by the number of days during which it was derived and dividing it by 365. The issue obviously was not an issue of fact; and was an issue of law. and what was sought to be pleaded on the ground of 'res judicata' in the next suit was that the decision as to the method of computation to be applied, which was a matter of law was binding.

But even if Lord Carson used the word 'res judicata' in the sense in which it is used in suite in England, it cannot possibly be that their Lordships of the Privy Council were unaware that there was a bar, namely, of estoppel by record, which could also govern the facts of the case before them, and it is hardly conceivable that if the contention which is now made on behalf of the Borough Municipality were a correct contention even in England, they failed to notice that once the method of computation which was a matter of law was decided between the parties in an earlier case the same method must subsequently be followed in a subsequent case.

14. Then we come to the case of -- 'Jones v. Lewis (K)'. In that case an assistant overseer of the poor had been duly elected by the inhabitants of a certain parish in vestry assembled before the passing of the Local Government Act, 1894. Following the election there was a warrant of justices appointing him an assistant overseer and that appointment was duly made by a proper warrant issued.

In 1396 the Local Government Board, acting under Section 33 of that Act, made an order conferring on the council of the urban district in which the parish was situate the power of appointing and, subject as mentioned in Art. VI, of revoking the appointment of the assistant overseer of the parish. But by Art. VI, nothing in that order was to apply to a person who was appointed in office and he was to continue to hold office upon the same terms as previously.

In September 1905 the inhabitants of the parish. without revoking the plaintiff's appointment and without his resigning, passed a resolution increasing his salary by 115 a year, and in August 1908two justices issued a warrant, which, after reciting that the inhabitants had nominated and elected toe plaintiff and had fixed the yearly sum of 200 as his salary together with such a sum as he might be allowed for work in connection with the registration of voters, proceeded to appoint him assistant overseer to perform the duties and receive the salary fixed by the inhabitants.

In an action by the plaintiff against the overseers of the parish, who refused to pay the increased salary, it was held on 23-3-1907, that the plaintiff had not been duly appointed at the increased salary, because among other reasons the powers of re-nomination and re-election, which were necessary before the salary of an assistant overseer could be increased, had been vested in the urban district council.

In September 1912 the inhabitants, without any resignation of the plaintiff or revocation of his appointment, resolved that he should be paid a salary of 250 a year for performing the duties of overseer of the poor with certain exceptions; and in October 1912 two justices issued a warrant which, after reciting that the inhabitants had nominated and elected the plaintiff and had fixed his yearly salary at 250, proceeded to appoint him assistant overseer to execute the duties and receive the salary fixed by the inhabitants.

Doubts having arisen as to the validity of this appointment, the Local Government Board in 1915 made an order substituting for Art. VI of their order of 1896 the following:

'(1) Nothing in this order shall

(a) apply to the revocation of the appointment of any person now holding office as assistant overseer in any parish to which this order extends;

(b) preclude any such person as aforesaid, in the event of his ceasing to hold the said office, from being re-appointed to such office as if this order had not been made.

(2) Every person holding office, or re-appointed as aforesaid, shall hold office by the same tenure and upon the same terms and conditions as would, if this order had not been made, have attached to his holding of the said office, whether of any appointment subsisting at the date of this order or on any appointment made thereafter.'

In 1916 the inhabitants again, without any resignation of the plaintiff or revocation of his appointment, resolved that the plaintiff should be paid a salary of 250 a year for performing the duties of overseer of the poor with the same exceptions as before, and again two justices issued & warrant reciting his nomination and election by the inhabitants and appointing him to be overseer of the poor and empowering him to perform the duties and receive the salary fixed by the inhabitants. In action by the plaintiff against the overseers of the parish claiming a declaration that he was entitled under the warrant of 1912, or alternatively under the warrant of 1916, to salary at the rate of 250 a year it was held that the inhabitants in vestry assembled had no power to Increase the salary of an assistant overseer unless either he resigned his office, or they revoked his appointment, or it terminated by effluxion of tune; and that, as none of these events had happened, the warrants of 1912 and 1916 were inoperative.

But the contention which was taken on behalf of the overseers of the parish was that in the earlier suit it was held that the power of re-nomination and re-election at an increased salaryhad vested in the urban district council and the plaintiff was precluded by the judgment of 23-3-1907, from contending that the power of revoking, his appointment and re-electing him at an increased salary remained in the vestry after the order of the Local Government Board made in 1895.

Bankes L. J., who dealt with this question, said (p. 344):

'... .It has been argued that this decision operates as an estoppel between the overseers of the parish for the time being and the respondent, and that it is impossible for the latter in any subsequent dispute with the former to say anything contrary to that decision. I do not take that view. There is no real dispute as to the law of estoppel between parties or privies.

No question of fact which was directly in issue between the parties to the action before Bray J., and which was decided by him, could be further litigated by either party, and the same would apply to the exact point decided by Bray J., whether it were a point of law or of mixed law and fact. But the reasons which led the learned Judge to his decision upon the precise point do not bind the parties in a subsequent litigation.'

He relied in support of his view on -- 'Outram v. Morewood', (1803) 3 p&h; 346 and --'Ballantyne v. Mackinnin', (1896) 2 QB 455 (O).

Similarly Warrington L. J. said (p. 351):

'....As to the attempt made in 1905 it is only necessary to say that the judgment of Bray J. in the former action is conclusive against the respondent to this extent, that the resolution. of the vestry in September, 1905, and the warrant of the justices in August, 1906, were not effectual to increase his salary. That was the precise point decided in that action, and that point he is estopped from disputing; he does not indeed dispute it in this action. The reasons for the decision and the grounds on which it was based are not binding upon him.'

What this case shows is that the law in England is that, if, taking a particular view as to where the power of re-nomination and re-election was vested, a particular appointment was held to be invalid, what was barred by the principle of 'res judicata' in subsequent actions is the agitation of the question as to whether that particular appointment was valid. If any question of validity of any subsequent appointment arose, it could not be said that the principle of 'res judicata' required that the same view as to where the power' of re-nomination and re-election vested must be taken in the subsequent suit as the agitation of the question was barred by 'res judicata'.

That means, when the Court had to consider the question as to in whom the power of re-nomination and re-election lay, when in 1912 and in 1916 the inhabitants resolved that the plaintiff should be paid a higher salary, the Court in the subsequent suit was entitled to take whatever view it liked' of the matter; it could say that the power lay either with the urban district council, or it was with the vestry according to its own views of the laws and the rules upon the subject. This decision, therefore, seems to me directly contrary to the proposition which the learned advocate, who appears on behalf of the Borough Municipality, wants me to accept, and that is, that, if any view was, taken as to the effect of any particular Act or an article in any subsequent suits even if the factsto which the law applied in the prior suit differed, the same view of law must be taken.

15. The learned advocate, who appeal's on behalf of the Borough Municipality, says that in that case in the year 1915 because there were doubts expressed about the validity of the appointment made by the vestry in 1912 the Local Board made an order substituting to Art. 6 of the order the words which have been mentioned above; but it does not appear to me that the view which was taken in the case of -- 'Jones v. Lewis (K)', that the plaintiff was not barred by 'res judicata' proceeded upon the principle that subsequent to the plaintiff's appointment in 1905 there was a change in law. As a matter of fact, such an argument could not be made with regard to the appointment of 1912.

The change in law was only in the year 1915, and the plaintiff filed a suit contending that he was entitled to enhanced salary at 250 per year both under the warrant of 1912 and under the warrant of 1916. The argument that a change of law rendered the' former decision not binding could apply to the warrant of 1916, but the plaintiff claimed salary of 250 per year also under the warrant of 1912, and between the decision of March 23, 1907, and the appointment of 1912 there was no change of law, so that if the principle of 'res judicata' required that the decision as to where the power of re-nomination and re-election Jay arrived at in the suit decided on 23-3-1907, was to be taken in the subsequent suit also, then the warrant would have had to be held to be bad on the ground that the power of re-nomination and re-election before the salary of assistant overseer could be increased had been vested in the urban district council, and that view distinctly was repelled by the learned Judges who disposed of --'Jones v. Lewis (K)'.

15. The learned advocate, who appears on behalf of the Borough Municipality, has relied upon another case in -- 'Hoystead v. Commissioner of Taxation', (1926) AC 155 (P). In that ease under a will the annual income from an estate in Australia, was divisible by the trustees between the testator's daughters. The trustees objected to an assessment for the financial year 1918-1919 under the Land Tax Assessment Act 1910-1916, of Australia; they claimed under Section 38, sub-s. (7) of the Act, a deduction of 5.000 in respect of the share of each daughter.

A case was stated for the opinion of the Pull Court of the High Court upon the questions: (1) whether the shares of the joint owners, or of any and which of them, in the land were original shares within Section 38; (2) How many deductions of 5,000 the respondent should make. The Full Court answered these questions as follows: (1) The shares of the six children surviving at the date of the assessment; (2) Sis. Judgment upon the objection was entered accordingly.

Upon the assessment for 1919-1920 the Commissioner allowed only one deduction of 5,000 contending that the beneficiaries were not joint owners within the meaning of the Act. Upon a case stated the Pull Court upheld that view, and held that the Commissioner was not estopped by the previous decision. Their Lordships of the Privy Council held, however, that the Commissioner was estopped, since although in the pre-vious litigation no express decision had been given whether the beneficiaries were joint owners, it being assumed and admitted that they were, the matter so admitted was fundamental to the decision then given.

In my view this case does not support the proposition that a question of law divorced from the facts of a particular case can be taken as 'res-judicata' in a subsequent litigation between, the same parties. What was taken there as having been decided between the parties was a mixed question of law and fact; that was whether the daughters were or were not joint owners. It may be that that finding proceeded upon an erroneous view, an error having crept in because of the reference which was made was on the basis that they were Joint owners, which was accepted by every one of the parties to the litigation. But the fact remains that the error was an error upon a question of fact also because the question as to whether certain owners are joint owners or separate owners cannot, by any possible imagination, be said to be a pure point of law.

16. The next cases which are relied upon are cited not for the sake of what was decided in. those cases but because of certain observations which are to be found in them and which, it is said, support the contention that there may be bar of 'res judicata' in what is called a pure point of law. I shall go to the extracts from those cases in a minute; but before proceeding it would be just as well to observe that unlike in India in England the doctrine of 'res judicata' is not found embodied in any statute but was developed from time to time by Judges as a branch of common law.

In the result, therefore, whenever there are to be found remarks in. any case the remarks ought not to be interpreted as if they were the words of a statute, but they must be interpreted in connection with the facts of each particular case. I can understand an argument made that if we take the remarks in conjunction with what was. actually decided, then, in that case, there could be no other inference possible except that a point of law will be 'res judicata' between the parties for all time.

It is not, however, contended before me that if vie go into what was decided in those cases what will be found is that where a legal principle is enunciated in any particular case that legal principle will affect all cases between the parties subsequently. It has been found in those cases, of course, that where there was any question decided between the parties, for example, a question of a title, or a question of a legal relation, or, to use the expression used by their Lordships of the-Privy Council in -- 'B. E. Jones, Ld. v. Waring and Gillow, Ld.', (1926) AC 670 at p. 701 (Q) 'the legal quality of a particular fact', then, in that case it was held that those findings with regard to the particular legal relation or the particular title or the legal quality of that, particular fact could not be re-agitated again in a subsequent suit.

17. Lord Ellenborough C. J. for example observed in -- '(1803) 3 P&h; 346 (N)' (p. 355):

'....The recovery of itself in an action of trespass is only a bar to the future recovery of damages for the same injury: but the estoppel precludes parties and privies from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them, or by those to whom they are privy in estate or law, has been, on such issue joined, solemnly found against them.'

18. The learned advocate, who appears on behalf of the Borough Municipality of Ahmedabad, says that the remarks which have been quoted do not make any difference between a point of law and a point of fact when they say that the parties and privies are precluded from contending to thecontrary of that point. Similarly, in -- '(1896) 2QB 455 (O)', Lord Justice A. L. Smith said (p. 462):

'... .As to a judgment being only conclusive as tothe point decided, there is as to this in ouropinion no distinction between a judgment inrem and a judgment in personam, excepting thatin the one 'the point' adjudicated upon' (whichin a judgment in rem is always as to the statusof the res) is conclusive against all the world asto that status, whereas in the other 'the point',whatever it may be, which is adjudicated upon,it hot being as to the status of the res, is onlyconclusive between parties or privies.'

Here again it has been pointed out that when theword 'point' had been used, no difference has beenmade between a point of fact and a point of law.

Reliance has been placed upon the remarks of Vice-Chancellor Knight Bruce in -- 'Barrs v. Jackson', (1842) 1 Y & C C C 585 (R & S) where, after quoting extracts from Lord Ellenborough's judgment in -- 'Outram v. Morewood (N)', he proceeded to observe as follows (p. 597):

'....The action, however, in -- 'Outram v. More-wood (N)' raised, as to the same property and for the same purpose, the same issue as was raised and tried in the action the judgment wherein was pleaded; and there are material points of distinction between the system of pleading of the English courts of common law and those of other courts of justice.

But it is, I think, to be collected, that the rule against re-agitating matter adjudicated is subject generally to this restriction--that however essential the establishment of particular facts may be to the soundness of a judicial decision, however, it may proceed on them as established, and however binding and conclusive the decision may, as to its immediate and direct object, be, those facts are not all necessarily established conclusively between the parties, and that either may again litigate them for any other purpose as to which they may come in question, provided the immediate subject of the decision be not attempted to be withdrawn from its operation, so as to defeat its direct object.

This limitation to the rule appears to me, generally speaking, to be consistent with reason and convenience, and not opposed to authority. I am not now referring to the law applicable to certain prize and admiralty questions, which are governed by principles in' some respects peculiar. On the whole, I am not at present prepared to say that, according to the proper sense of the expression, the judgment of the Ecclesiastical Court between these parties was directly upon the point of the alleged illegitimacy of Robert James Smith, and had the establishment of that supposed fact for its proper purpose and object, so as to render his illegitimacy 'rem judicatam' between the parties on a question of distribution.'

To my mind in these remarks again there is nothing which would show that a point of law becomes 'res judicata' between the parties when the facts to which it is to be applied are different. On the other hand, to some extent, the Judgment seems to indicate, that, even where there has been a determination of facts between the parties, howsoever necessary the determination of this may be in a subsequent suit, they could litigate them again for any purpose other than that to which they were litigating in the earlier suit. We are not' concerned with the latter question in this case.

19. In the result, therefore, in my opinion, so far as the English law is concerned, there is no doubt whatsoever that a point of law cannot betaken to be 'res judicata' between the parties between any future litigations from them divorced from facts in relation to which it was decided.

20. It is contended on behalf of the Borough Municipality of Ahmedabad that even so in India we have got our own statute, namely, Section 11, Civil P. C. It is true that the section is not exhaustive; but inasmuch as it is a section of a Code of which it is the essence to be exhaustive of that with which it deals, when Section 11 deals with any question, it must be taken that the law upon that question is what is laid down in that section, and it is not permissible for any one to say that because the law in England is different it must be taken that that law prevails even in India. That cannot possibly be disputed.

But the question will only arise if to the languagewhich has been used in Section 11 an interpretationwhich is consistent with the view that an abstractprinciple of law can never be taken to have beendecided between the parties in a subsequent litigation cannot be derived from the language of Section 11without stretching its meaning (Sic) Now so far asthe suit is concerned, a subsequent suit which isexactly the same as the former suit, will obviouslybe barred by 'res judicata'.

The question before us is about the bar of 'resjudicata' in regard to an issue. Now, Section 11 dealswith the issues which cannot be litigated in thefollowing terms:

'No Court shall try any suit or issue in which thematter directly and substantially in issue hasbeen directly and substantially in issue in aformer suit......'

Only those issues cannot, therefore, be tried again in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit. What the Court has got to find out before saying that the bar of 'res judicata' applies is whether the matter in issue in the issues concerned was directly and substantially in issue in a former suit between the same parties.

Now, Explanation 3 to the section says that the matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

The learned advocate, who appears on behalf of the Government of the State of Bombay, says that this explanation will show that the matter which cannot be tried again must include facts. It could not possibly be merely a question of law, because under Order 6, Rule 2, every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.

He says that the word 'only' shows that the pleading must not state any law. Issues arise only upon the pleadings, and consequently when Section 11 uses the words 'matter substantially in issue between the parties', what is meant is that the allegations of fact which are made and denied and owing to which an issue arises. It will be difficult, however, to go to this extent, for the reason that in that case if there was a mixed question of law and fact involved between the parties it would be said that what would be barred by 'res judicata' between the parties, would be only the decision on the point of fact and not the decision of a point of law.

Their Lordships of the Privy Council pointed out in -- 'Hoystead v. Commissioner of Taxation', (1926) AC 155 at p. 170 (P) though that was with reference to a bar which arises by an admissionin a prior suit, that what cannot subsequently be agitated again is not only the fact but also where the legal quality of fact was in dispute and decided the legal quality of the fact. They observed in that case (p. 165):

'......In the opinion of their Lordships it issettled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact.

Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of ' certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted.'

But all the same Explanation 3 uses the words 'the matter alleged', and in my opinion this shows that the issue of which the agitation cannot be allowed in the next suit must be a matter which .might involve law, but which must involve facts. The word 'alleged' is more properly used with regard to facts and not with regard to law. It cannot be said that the word 'alleged' can never be used in connection with an issue of law, because it will be found from Order 14, Rule 1(2)', that the word 'alleged' has been used also with regard to propositions of law.

That rule says:

'Material propositions are those propositions oflaw or fact which a plaintiff must allege inorder to show a right to sue or a defendantmust allege in order to constitute his defence.'

But all the same the word 'alleged' is used moreproperly where a question of fact is involved, andin my opinion therefore the words of Explanation3 are capable of bearing an interpretation thatthe matter in issue which cannot be re-agitatedagain in a fresh suit must be a fact or a set offacts or the legal quality of a particular fact orset of facts or the legal effect of the fact or setof facts.

The matter would be different if this interpretation could not possibly be given to the words of Section 11; but in my opinion it is not necessary to stretch the meaning of words to give it that interpretation; and if two interpretations are possible, it is obvious that that interpretation should be adopted which will be consistent with the principles which have been derived by Judges in England who have developed the doctrine of 'res judicata' as a matter of reasoning; and that is especially so when to hold otherwise would obviously lead to injustice in entirely unconnected fresh cases between the parties.

21. But even if it was necessary to do some stretching in order to interpret the words 'matter substantially in issue', there is authority for-stretching it in the decision of their Lordships of the Privy Council in -- '2' Ind App 283 (L)'.

That decision interpreted the wording of the old Act of Civil Procedure Code, namely, that of 1859,which stated the doctrine of 'res judicata' withthe help of the word 'cause of action', and theview which they took was that 'cause of action-there ought riot to be taken in its literal andmost restricted sense, and in my opinion upon asimilar argument even if the strict sense of the words 'matter alleged' was a matter whether of fact or of law or both, it should not be taken in the most literal sense but it should be treated to mean a matter involving fact whether with or without questions of law.

22. The consensus of opinion in the other High Courts just as in the case of this Court has been against holding that a decision on pure issue of law governs the determination of subsequent litigation between the parties when the facts to which the legal principle is sought to be applied are different. This question went up to the Pull Bench of the Calcutta High Court in : AIR1928Cal777 (H)'.

The decision actually was that where a matter directly and substantially in issue was also directly and substantially in issue in a previous suit and had been heard and decided, the principle of 'res judicata' could not be ignored on the ground that the reasoning, whether in law or otherwise, in the previous decision could be attacked on a particular point. But the decision made a quaere as to whether special consideration should apply to decisions on questions of law as to jurisdiction, limitation or procedure.

Rankin C. J., who delivered the judgment of theFull Bench of that Court, pointed out in that case,after laying down the principles mentioned above(p. 782):

'......On the other hand, it is plain from theterms of Section 11 of the Code that what is made conclusive between the parties is the- decision of the court & that the reasoning of the Court is not necessarily the same thing as its decision. 'The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se', but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from re-opening or recontesting that which has been finally decided.'

If these remarks are correct, and with respect I think that they are, we must not give to the language of Section 11 interpretation which will make a principle of law binding upon the parties 'inter se' for all time divorced from the facts of the particular case, similarly, a Pull Bench of the High Court of Madras considered an analogous question in -- 'Narayan v. Subramanian', AIR 1937 Mad 254 (FB) (T), and observed that there could be no 'res judicata' laying down a wrong rule of law between parties for future guidance also.

The decision must be confined to the matter to which it had been applied at the time of the former decision.

Recently a Full Bench of the Calcutta High Court also in -- 'AIR 1949 Cal 430 (M)' decided that an abstract question of law dissociated from and unconnected with the rights claimed or denied as between the parties to the litigation, is of no importance or value to them or to the decision of the case itself and cannot be said to be substantially in issue, and is not 'eadem questio' and the principles of 'res judicata' cannot apply. They said it is not every decision of a question of law between the parties which is binding but only that decision on such a question which affects the subject-matter or creates a legal relation between the parties or defines the status of either of them, which is binding.

The learned advocate, who appears on behalf of the Borough Municipality of Ahmedabad, has point-ed out that in this case the view which was taken was that in the first Instance Section 11, Civil P. O. does not apply, and the remarks must therefore be taken to have reference only when the section does not apply. Now, it is quite true that so far as this particular case is concerned, 8. 11 did not apply; but I fail to understand how unless we can say that the language of Section 11 would not bear the interpretation which I suggested above it would be correct to apply a different principle when the question of 'res judicata' falls within the purview of Section 11 from the principle applied when it falls within the general law.

In any case this argument cannot be applied tothe decision in Madras in which obviously if there was to be a bar of 'res judicata' disentitling a party to affirm that the law was opposite to what was stated in an earlier case, the conclusion which was actually reached could not have been reached. The only authority which has been pointed out as against this in India as to an erroneous decision on an issue of law being binding is -- 'Kub Lal v. Gulzari Lal', : AIR1927All297 . Now, even though the headnote of the case runs: an erroneous decision on an issue of law can be the basis of a plea of 'res judicata', and even though in the body of the judgment their Lordships of the Allahabad High Court after expressing their dissent with the view which was taken in the case of -- 'Mangalathammal v. Narayanswami Aiyar', 30 Mad 461 (V), and observing (p. 297):

'...we are, however, unable to concur in this expression of opinion,' because in the words 'No Court shall try any suit in which the matter directly and substantially in issue has....'

held that there is nothing which would limit the matter in issue to an issue of fact, the actual decision in the suit referred to is explicable by the reason that what was decided in the prior suit was question of the title to property in which the plaintiffs were joint owners. This finding in the earlier suit was taken as binding.

It was contended that this finding was bad, because there was an error made in law; but as I have already mentioned, whenever there is a finding recorded upon a matter which involves facts, the finding does not cease to be 'res judicata' on the ground that the reasoning is bad in law. The actual decision, therefore, was that a finding that was arrived at in the former suit with regard to title of the properties must be taken in a subsequent suit. That is exactly what was said by Lord Ellenborough in -- 'Outram v. Morewood (N)'.

23. In my opinion, therefore, leaving aside the cases in which the cause of action strictly so called is the same, a finding of law arrived at between the parties in a prior suit cannot be taken in a subsequent suit between the parties divorced from the facts upon which it was obtained.

Some support can be derived for this proposition, apart from the English authorities which I have mentioned above, from a case which went up to their Lordships of the Privy Council in -- 'Bindeswari Charan v. Bageshwari Charan .

In that case the owner of an impartible estate, the management of which had been vested in a manager appointed under Section 2, Chota Nagpur Encumbered Estates Act, 1876, shortly after its release to him in 1909 executed a maintenance grant in favour of the appellant, one of his sons, yielding an annual income of Rs. 1,300. The sanction of the Commissioner was not obtained under Section 12A of the above Act to that grant. On attaining his majority the appellant instituted proceedings against his father and two brothers claiming, a maintenance grant of Rs. 4,000 a year, and maintaining that the sanction of the Commissioner under the Act was not necessary. It was decreed in that suit that he was entitled to a maintenance grant yielding Bs. 4,000 annually, inclusive of the Rs. 1,300 payable under the grant of 1909, and that the grant of 1909 was legally valid. In implement of that decree the appellant's father executed in 1920 an additional maintenance grant up to the value of the decreed sum.

The suit which came before their Lordships on appeal in -- 'Bindeswari Charan v. Bageshwari Charan (W)' was filed by Bageshwari, the son of one of the appellant's brothers, who subsequently became owner of the impartible estate among other things for a declaration that the two maintenance grants of 1909 and 1920 were illegal and invalid and not binding on him. It was held that the question of the validity of the 1909 grant in view of Section 12A of the Act of 1876 having been directly and substantially in issue and decided in the maintenance suit, and of the parties being the same or their representatives, the conditions of Section 11, Civil P. C. were satisfied and the Court in the respondent's suit was not competent, in view of the provisions of Section 11, Civil P. C., to try the issue of the validity of the 1009 grant.

It was held further that the decision in the maintenance suit operated as 'res judicata' and, in. accordance therewith Section 12A did not affect the grant of 1909 or the grant of 1920, as the latter was executed by way of carrying out the order in the judgment and decree in that suit. Both the grants were therefore binding on the respondent. The plea of 'res judicata' which was raised in the suit by the appellant was dealt with by their Lordships in this manner (p. 48):

'Truly the third sub-section of Section 12A renders void any transaction to which it is applicable, but the question whether it applies to a particular transaction entitles the Court to consider the construction of the section, and the determination of its applicability rests with the Court. The decision of the Court in the suit of 1917 determined that the section had never applied to the transaction of 1909, and it is difficult to follow the reasoning of the learned Judge which allowed him, not only to express a strong contrary view as to the applicability of the section, which he was entitled to do, if he chose, but to try anew the issue as to its applicability--in face of the express prohibition in Section 11 of the Code.'

This shows that once the Court has considered the question as to whether a particular section applied to a particular set of facts, then no Court could subsequently say between the same parties that that section had not applied to these facts.

24. When the question of bar of 'res judicata' as regards 1920 grant was dealt with, they observed (p. 49):

'With regard to the 1920 grant, the learned Judge, taking the view--rightly, as their Lordships think --that the suit of 1917 was brought under the Code of Civil Procedure, states: 'The only effect of the decree in that suit was to declare the appellant to be entitled to obtain from Jadu Charan properties yielding an annual income of Rs. 4000. But Jadu Charan was incompetent to-give effect to the decree unless the Commissioner sanctioned a transfer or charge under Section 12A.' It is not clear how far this view is based on the learned Judge's opinion as to the 1909 grant, but, in any event, their Lordships are clearly ofopinion that the learned Subordinate Judge was right on this point, and that the decision in the suit as to the construction of Section 12A is res judicata as the validity of the grant of 1920 which was made in fulfilment of the obligations of that decision.'

The reasoning shows quite clearly that the decision as to the construction of the 1907 grant was held to be applicable to the 1920 grant but only on the ground that, that grant was made in fulfilment of the obligations of the particular decision.

It has been well established that when a suit is instituted upon a cause of action, the suit does not come to an end along with the decree. A subsequent application for execution would be a continuation of the suit, and if in this case the decree-holder had been required to file an application for execution in order to obtain a grant from the judgment-debtor, the judgment-debtor could not in the same case have been heard to say that the construction of Section 12A which had been adopted by the Code was not a correct one and sanction of the Commissioner even so was necessary. What happened was that' the judgment-debtor sensibly, instead of compelling the decree-holder to have recourse to any execution, executed a grant in favour of the decree-holder, and their Lordships said that in effect the grant stood upon the same footing as a grant which would have been obtained by filing an application of execution. No objection could have been taken to the latter in a subsequent suit on the ground of absence of the sanction of the Commissioner.

Their Lordships decided that it made no difference that the grant of 1920 was obtained privately and not by having recourse to a Court of law in execution. The case is an authority for the proposition that what the Courts are precluded from challenging is the applicability of a particular construction to the set of circumstances to which It was applied in the earlier litigation; the Courts are not precluded from applying a different construction of the law to a different set of circumstances arising between the same parties.

25. The learned advocate, who appears on behalf of the Municipal Borough of Ahmedabad, says that it would not be correct to say that the principle of 'res judicata' does not apply because the properties in the two suits are different. In support of this contention he says: Suppose it was a question of validity of a lease and in the former 'suit only one of the properties included in the lease was the subject-matter, if in a subsequent suit with regard to another property the validity of the same lease was sought to be put into issue, the finding in the earlier suit would have to be taken as a finding in the latter suit, and the matter could not be allowed to be agitated again. To that contention no exception can be taken.

But the argument which has been put on behalf of the Borough Municipality goes much further; what it amounts to is that if the question of validity of a particular lease was decided between the parties in one suit upon a particular construction of a statute, then, if there was a different lease executed between the same parties, then the same construction of the statute must be adopted in a subsequent suit with regard to that lease.

It would be convenient to have recourse to an example. Under Section 5, Bombay Tenancy Act no tenancy of any land shall be for a period of less than 10 years. Supposing A executes a lease in favour of B for a period of one year and the rent for that year not having been paid sues for its recovery, and B takes a contention that the leaseis void on the ground of contravention of that section; any finding which is arrived at in the suit as to the validity of the said lease will have to be taken in any suit for rent which the plaintiff may file against the defendant basing his cause of action upon the same lease.

But suppose that there was another lease executed by the plaintiff in a subsequent year; if the plaintiff files a suit whether for rent or whether for recovery of possession, contending that the lease has come to an end, no Court is required to adopt the construction of Section 5 which has been adopted in the earlier suit in connection with this different lease.

Or take for example the case of an adoption; we shall assume that A and B are separated brothers, and after A's death A's widow takes in adoption C. There is no dispute between the parties that the adoption, as a matter of fact, took place, but the adoption is challenged on the ground that C was the son of A's sister and the adoption of sister's son was invalid; we shall assume that the adoption is held valid; subsequently B having died B's widow adopts another son of another sister of A and B, D,

Now, if C sues D for possession of the property belonging to B claiming that the adoption by D's widow of the sister's son was invalid, D is precluded from contending that C's adoption by A's widow was invalid on the ground that an error of law was committed. I am assuming for the purpose of argument that an error of law was committed; but C is not precluded from contending by the decision in the suit between him and B that adoption by the widow of B of her husband's sister's son is invalid.

The reason is that the bar of 'res judicata' applies to the contention taken by D because of the view taken in the former suit that the adoption of C was valid that finding being binding between the parties so far as C's adoption is concerned. But so far as D's adoption is concerned the view of law is not binding upon the parties because they never call upon the Court to determine a question of law irrespective of fact; what they call upon a Court of law to decide is the applicability of a particular principle to a particular set of facts.

36. In my opinion, if we apply these principles to the present case, what is barred by 'res judicata' is that the particular order of the Collector which was challenged in the earlier suit was an illegal order. The reasoning upon which that order has been based cannot, as was pointed out in -- '(1919) 1 KB 328 (K)', be taken in the present suit, and that is irrespective of whether the reasoning is correct or whether the reasoning is not correct.

It is true that the reasoning proceeded upon a basis which was not confined to the particular street of land which was involved in that case. Had other pieces of land been involved the decision must have been the same; but other pieces of land were 'not' involved and I do not think it is any more correct to say what the matter in issue in the issue framed by the appellate Court was the right of Government to levy non-agricultural assessment on street lands converted to use for non-agricultural purposes than saying In a suit in which the legality of the adoption of a sister's son is involved that what was involved was the right of the adopting mother to take in adoption her husband's sister's son.

That was what was pointed out by their Lordships of the Madras High Court in -- 'Narayana v. Subramanian (T)'. In that case there was a dispute between a landlord and a tenant with regard to a higher rate of rent claimed by thelatter with respect to a particular area. The tenant claimed that he was liable to pay only the dry rate on the ground that the coconut plantation in the same was an improvement within the meaning of Section 3(4)(f), Estates Land Act. In a prior litigation between the same parties for a previous year with respect to a portion of the area of the same holding it was held that the planting of a coconut garden was not an improvement and that the landlord was entitled to the enhanced rate.

The Full Bench of the Madras High Court point-ed out that the principle that a decision of law though erroneous is 'res judicata' in a later suit between the same parties should be confined only to the matters which existed at the time of the prior suit, unless some question of general principle was settled in the same, and that, accordingly, the decision in the prior suit did not apply to the new areas in the holding which were not planted with coconut trees at the time of the prior suit and in respect of which no claim was or could be made in the former suit.

Ramesam J., who delivered the principal judgment of the Full Bench in that case, pointed out that there could be no 'res judicata' laying down a wrong rule of law between parties for future guidance also. The case is an authority for the proposition that, whenever it is claimed that the principle of 'res judicata' applies, even though what was decided was a pure point of law, because the right claimed in the former suit is the same as the right claimed in the earlier suit, the right claimed in the earlier suit cannot be artificially phrased in such wide terms as contended on behalf of the Municipality, for example, in that case, the right of the landlord to levy higher rate of rent with regard to coconut plantation.

Similarly, in this case it cannot be said that what was involved in the prior suit was the right of Government to levy non-agricultural assessment upon areas which were formerly included in a street, but were subsequently converted for use for non-agricultural purposes. Whether such cases would be liable for non-agricultural assessment at a future date would depend not only upon the state of law which would be then existing but also upon any contract' between the parties to which the conversion was subject.

I would myself, therefore, hold in this case that there was no bar of 'res judicata' preventing the defendant from contending that the street land converted for non-agricultural use was liable to pay enhanced assessment.

Vyas, J.

27. With respect I am unable to agree with my learned brother's view on the point of 'res judicata' which has been argued before us. In my view, the matter directly and substantially in issue in both Suits Nos. 907 of 1942 and 1287 of 1944 was the same, namely, the alleged right of the Government of the Province of Bombay to levy non-agricultural assessment from a Municipality on a piece of public street land which vested in the Municipality and which was diverted by it to another purpose. The issue agitated in the former litigation (Suit No. 907 of 1942) was whether the order of the Collector charging non-agricultural assessment on a portion of the public street land--92 square yards--which vested in the Municipality and was diverted by it to be used for another purpose (purpose of fish market) was legal or illegal.

That precisely was the substance of the issue involved in the subsequent suit also (Suit No. 1287 of 1944) in which a portion of the public street land square yards--which vested in the Municipality was diverted by it to be used for another purpose (purpose of meat stalls), and a question arose whether Government could charge non-agricultural assessment on it from the Municipality. Now, in the previous suit it was held both by the trial Court & the Court of appeal that it was illegal for Govt. to levy non-agricultural assessment on the portion of the street land which was utilised by the Municipality for another use. Therefore, in my opinion, the trial of substantially the same issue in the subsequent suit (1287 of 1944) would be barred under Section 11, Civil P. C.

Parties to both suits being the same and the matter directly and substantially in issue in both suits being also the same, the decision of the Court in the previous suit to the effect that it was not legal for Government to levy non-agricultural assessment from the Municipality for a portion of the public street land converted by it to another use is binding on both parties in the subsequent suit. Of course the portion of the street land concerned in one suit was 92 square yards and that in the other suit was 60 1/2 square yards.

Similarly the purpose to which the public street land was diverted was different in the two suits, fish market in the one and meat stalls in the other. But those were merely subsidiary or unsubstantial details, the substance of the matter in issue being the same in both suits, namely, whether there was a legal right in Government to charge non-agricultural assessment if municipal street land is diverted by Municipality to another purpose.

I am, therefore, of the opinion that the principle of 'res judicata' applies and it is not open to the Government of the Province of Bombay to charge non-agricultural assessment on 60 1/2 square yards of the municipal street land diverted by it to be used as meat shops.

28. In 1942 a regular suit No. 907 was filed in the Court of the Civil Judge, Senior Division, Ahmedabad, for a declaration that the order of the Collector of Ahmedabad No. C. T. S. 2787 dated. 30-7-1941, charging non-agricultural assessment on 92 square yards of public street land converted by the Municipality into a fish market was 'ultra vires', illegal and not binding upon the plaintiff Municipality and for an injunction to restrain the defendant Province of Bombay or its officers from assessing and levying assessment on the parcel of land concerned from the plaintiff.

29. That suit was decreed in favour of the plaintiff. There was an appeal against that decree by the Province of Bombay, in which the decision of the trial Court was confirmed.

30. In Suit No. 1287 of 1944, from which this Letters Patent Appeal No. 36 of 1948 has arisen, a challenge was made by the Municipality of Ahmedabad against the order of the Collector of Ahmedabad dated 29-3-1941, charging non-agricultural assessment to the Municipality for utilizing 60 1/2 square yards of the public street land for three meat shops.

31. The suit was dismissed by the trial Judge (Joint Civil Judge. Senior Division, Ahmedabad). On appeal by the Municipality, the decision of the trial Court was reversed, the learned appellate Judge holding that the decision in the previous suit (No. 907 of 1942) would be a bar to the agitation once again of the same question whether Government had a right to levy non-agricultural assessment on a portion of the street land diverted by the Municipality to another purpose.

Against that appellate decision, the present Letters Patent appeal has been preferred by the Government of the Province of Bombay.

32. It would appear that in the present litigation the same matter in issue as was agitated in the previous suit between the parties has been agitated again, namely, whether Government of the State of Bombay has a right to levy non-agricultural assessment on a portion of the municipal street land which the Municipality has diverted to another purpose. The decision in the prior suit was that the Government had no right to levy non-agricultural assessment on a portion of the municipal street land, which in that particular case was 92 square yards and was diverted to be used as a fish market.

33. Mr. Kotwal for the appellant State of Bombay contends that as the previous decision was in respect of a piece of street land which was 92 square yards in area and which was diverted for use as a- fish market, it could not operate as 'res judicata' in this case where we are dealing with a different piece of land which is 60 1/2 square yards in area and which has been diverted to be used for a different purpose, namely, as meat shops. His submission is that the matter in issue in the two suits is not the same.

34. Mr. Patel for the respondent Municipality contends that the distinction drawn by Mr. Kotwal between the two suits is on mere matters of detail which would not affect the principle of 'res judicata', that facts in no two cases, can be identical, and that if on such small paints of difference regarding matters of detail we are to hold that the principle of 'res judicata' will not apply, the law regarding 'res judicata' will be rendered nugatory.

35. Let us now read Section 11, Civil P. C. It says:

'No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.'

What is to be considered, as far as Section 11 is concerned, is whether the matter directly and substantially in issue in both litigations is the same. Explanation 3 to Section 11 says:

'The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.'

Now, Mr. Kotwal contends that for the application of the doctrine of 'res judicata' the cause of action in both the litigations must be the same. His submission is that the words 'the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties' mean that the cause of action in both the litigations must be the same. He then argues that a pure and abstract question of law can never be a matter in issue.

In other words. Mr. Kotwal submits that under Section 11, Civil P. C. decisions on questions of fact and mixed questions of fact and law can be 'res judicata', but not the decisions on pure and abstract questions of law.

36. Mr. Patel, on the other hand, contends that so long as the matter directly and substantially in issue in both the suits is the same, all questions,whether of law or fact, can be subject-matter of 'res judicata'.

37. In my opinion, there is no justification to restrict the meaning of the words 'the matter directly and substantially in issue has been directly and substantially in issue in a former suit' so as to limit the section only to questions of fact and mixed questions of law and fact. The language of Section 11 does not contain any such words as 'cause of action', 'subject-matter of suit', 'questions of fact', 'mixed questions of fact and law', or any such phrase. The words used are 'matter directly and substantially in issue in a former suit', and, in my opinion, so long as that requirement is fulfilled, even pure questions of law can be 'res .judicata'.

So long as the matter directly and substantially in issue in a former suit is also directly and substantially in issue in a subsequent suit, it would make no difference to the principle of 'res judicata' if mere formal details of a cause of action, which do not constitute its substance, differ in two suits. Legislature does not use superfluous words, and certainly the word 'substantially' which is used in Section 11 is not superfluously used. Obviously the antithesis of substance is form and therefore it is easy to conceive of cases where the issues may 'in substance' be the same, though their form and other unsubstantial details may be different.

If Mr. Kotwal means that for the principle of 'res judicata' under Section 11, Civil P. C. to apply, the cause of action in both the litigations must be 'in substance' the same, though its formal details may vary, I agree at once. But as he seems to contend that a bar of 'res judicata' under Section 11 cannot apply even if the details, as distinguished from the substance, of the cause of action in two suits differ I am unable to agree.

38. It is true that the English principle of 'res judicata' applies only where the cause of action in both the suits is the same, though even there the expression 'cause of action' is to be liberally construed: see -- '2 Ind App 283 (PC) (L)'. But in Section 11, Civil P. C., we do not see any such limitation imposed, and therefore, in my view, the principle laid down in Section 11 goes further in this particular respect than the English doctrine of 'res judicata' and appears to have been based or modelled to a certain extent on considerations on which the English law of estoppel by record has developed.

In other words, the fundamental principle of the doctrine of 'res judicata' as embodied in Section 11, Civil P. C., is not that the cause of action, including even unsubstantial details associated with it, in both the suits should be the same, but that the matter directly and substantially in issue in both the litigations should be the same.

39. The important thing is the language of the statute concerned, and a straight, natural meaning should be given to it. Nothing should be subtracted from its meaning or added to it unless the subtraction or addition is specifically provided for or can be clearly gathered. In this connection it would be convenient to refer to certain observations of their Lordships in : AIR1928Cal777 (H). It was said therein that (p. 781):

'In India, at all events a party who takes a plea of 'res judicata' has to show that the matter directly and substantially in issue has been directly and substantially in issue in the former suit and also that it has been heard and finally decided. This phrase 'matter directly and substantially in issue' has to begiven a sensible and businesslike meaning, particularly in view of explanation 4 to Section 11, Civil P. C. which contains the expression 'grounds of defence or attack'.

Section 11 of the Code says nothing about causes of action, a phrase which always requires careful handling. Nor does the section say anything about points, or points of law, or pure points of law. As a rule, parties do not join issue upon academic or abstract questions but upon matters of importance to themselves. The section requires that the doctrine be restricted to matters in issue and of these to matters which are directly as well as substantially in issue.'

So long as the restriction of the doctrine of 'res judicata' to matters which are directly and substantially in issue is borne in mind, it does not matter whether the issue is a pure issue of law or a mixed issue of fact and law, or whether the cause of action is the same, or whether its formal details which are not of substantial consequence differ. A matter in issue generally relates to rights of parties based on a statute or documents or other things as the case may be in different cases, and the law of 'res Judicata' says that if the rights of the parties in a particular matter directly and substantially in issue in a former suit have once been adjudicated upon, a second or subsequent adjudication on the same issue is barred.

In the case before us the matter directly and substantially in issue is whether Government of the Province of Bombay has a right to levy non-agricultural assessment on a piece of municipal street laud diverted by the Municipality to another purpose. That issue was heard and finally decided between the parties in Suit No. 907 of 1942 and therefore, in my view, according to the principle of law laid down in Section 11, Civil P. C. the second adjudication of the same question is barred.

40. At this stage it may be convenient to refer to certain authorities on the question of interpretation of a statute.

In -- 'Ramanandi Kuer v. Kalawati Kuer', AIR 1928 PC 2 (X), it was observed by their Lordships of the Privy Council (p. 4) that it had often been pointed out by them that where there was a positive enactment of the Indian Legislature, the proper course was to examine the language of that statute and to ascertain its proper meaning uninfluenced by any consideration derived from the previous state of the law or of the English law upon which it might be founded.

Then again in -- 'Babulal Choukhani v. Emperor', MB 1933 PC 130 (Y), it was pointed out by their Lordships who were dealing with sub-s. (1) of Section 5, Criminal P. C. that the language of that Code was conclusive, and must be construed according to ordinary principles, so as to give effect to the plain meaning of the language used. It was observed that doubtless, in the case of an ambiguity, that meaning must be preferred which is more in accord with justice and convenience, but that, in general, the words used, read in their context must prevail.

In -- 'General Accident, Fire and Life Assurance Corporation v. Janmahomed Abdul Rahim , the observations of their Lordships were even more categorical. They said (p. 9) that a law of limitation and prescription might appear to operate harshly or unjustly in particular cases, but where such law had been adopted by the State, it must, If unambiguous, beapplied with stringency. It was observed that the rule must be enforced even at the risk of hardship to a particular party and that the Judge could not on equitable grounds enlarge the time allowed by the law, postpone its operation, or introduce exception not recognized by it.

Their Lordships added that very little reflexion was necessary to show that great hardships might occasionally be caused by statutes of limitation in cases of poverty, distress and ignorance of rights, yet the statutory rules must be enforced according to their ordinary meaning.

In -- 'Gokal Mandar v. Pudmanund Singh', 29 I. A 196 (Z1), it was held that the essence of a Code was to be exhaustive on the matters in respect of which it declared the law, and that it was not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction.

As far as our own High Court is concerned, we might with advantage refer to -- 'Sitaram Sakharam v. Laxman Vishnu', AIR 1921 Bom 87 (Z2-3), wherein Shah J. observed (at p. 91) that Section 11, Civil P. C. did not make any distinction between issues of law and other issues, but referred generally to questions directly and substantially in issue and heard and finally decided. His Lordship did not think that the distinction could be accepted without restricting the scope of the section in a manner not justified by the words of the section. He said that the drawing of a distinction between issues of law and other issues, in construing Section 11, would involve the reading of words in the section which were not there.

His Lordship went on to say that the dictum in -- '22 Bom 669 (A)', must be read in the light of the special facts of the case, and added that the proposition, if taken without reference to the context, appeared to have been too broadly stated and not wholly justified by the words of 6. 13 of the Code of 1882 which was then in force.

I shall refer to the case of -- 'Chamanlal v. Bapubhai (A)', later, but at this juncture it would be sufficient to say that, in the view of Shah J. the proposition laid down in that case appeared to have been too broadly stated and not wholly justified by the words of Section 13 of the Code of 1882.

The ratio of these authorities on the question of interpretation of a statute is that where the language of a statute is clear and plain and does not admit of any ambiguity, it must be given its natural meaning. Therefore, all that we have got to see in this case is whether the matter which was directly and substantially in issue in the previous Suit No. 907 of 1942 and the matter which is directly and substantially in issue in Suit No. 1287 of 1944 are the same or not.

If the matter directly and substantially in issue is the same, the decision in the previous suit will be a bar to the re-agitation of the same question in the subsequent suit, as the parties to both the suits are the same, namely, the Ahmedabad Municipality and the Province of Bombay.

41. The question whether a decision on a pure point of law can be 'res judicata' or not is a somewhat vexed one and has been the subject-matter of numerous decisions of the different High Courts.

In -- '1926 AC 155 (P)', under a will the annual income from an estate in Australia was divisible by the trustees between the testator's daughters. The trustees objected to an assessment for thefinancial year 1918-19 under the Land Tax Assess- meat Act, 1910-1916, of Australia; they claimed under S, 3S, sub-s. (7), of the Act, a deductionof 5000 in respect of the share of each daughter.

A case was stated for the opinion of the Full Court of the High Court upon the questions: (1) Whether the shares of the joint owners, or of any and which of them, in the land were original shares within Section 38; (2) How many deductions of 5000 the respondent should make. The Pull Court answered these questions as follows: (1) The shares of the six children surviving at the date of the assessment; (2) Six.

Judgment upon the objection was entered accordingly. Upon the assessment for 1919-1920 toe Commissioner allowed only one deduction of 5000 contending that the beneficiaries were not joint owners within the meaning of the Act. Upon a case stated the Full Court upheld the view, and held that the Commissioner was not estopped by the previous decision. It was held by their Lordships of the Privy Council that the Commissioner was estopped, since although in the previous litigation no - express decision had been given whether the beneficiaries were joint owners, it being assumed and admitted that they were, the matter so admitted was fundamental to the decision then given.

The ratio of this decision is that where a particular matter which was fundamental to adecision in a previous suit between the parties has been decided, the same matter, if fundamental to the decision in a subsequent suit, cannot be agitated again between the same parties. In the above cited case the judgment of their Lordships was delivered by Lord Shaw who went on to say in the course of his judgment (p. 165):

'.....Parties are not 'permitted to begin freshlitigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no , end, except when legal ingenuity is exhausted.'

It was stated that it was a principle of law that this could not be permitted, and that there was abundant authority reiterating that principle (see pp. 165-163). Let us apply the effect of these observations to our present case.

We know it, as a matter of fact, that in Suit No. 907 of 1942 it was decided by a competent Court that the Government of the Province of Bombay had no right in law to levy non-agricultural assessment on a portion of street land (municipal land) which was diverted by the Municipality to a different purpose, namely, in that case a fish market. If it were open to the parties to agitate again the same question, namely, the right or otherwise of Government to levy non-agricultural assessment on a portion of municipal land diverted to another purpose by the Municipality, quite conceivably a contrary elision to the one which was arrived at in the previous litigation might be obtained.

If it were open to the parties then also to reagitate the same matter, it is quite conceivable that again a different view might be taken on the point of law whether Government had a right to levy non-agricultural assessment in above stated circumstances. The point is that different Courts trying the same issue might go on arriving at different conclusions on the same point andthere would be no finality to the litigation. It is only to put a stop to a further litigation on the same matter which is directly and substantially in issue between the same parties that the law of 'res judicata' has been enacted in Section 11, Civil P. C. and it appears to me, in view of the observations of their Lordships of the Privy Council at p. 166 in -- 'Hoystead v. Commissioner of Taxation (P)', that it is not open to the parties now, in our present case, to reagitate the question whether it is open to Government or not to levy non-agricultural assessment on a piece of municipal land converted by the Municipality to another purpose.

In -- 'Hoystead v. Commissioner of Taxation (P)', Lord Shaw went on to refer to the case in -- 'In re Graydon: Ex parte Official Receiver (J)' in which a County Court Judge had held that a sum of , 20 was in the nature of personal earnings on the part of a bankrupt patentee and belonged to the bankrupt. Subsequent royalties having become due the trustee applied to the Bankruptcy Court for a declaration that they vested in him after-acquired property. It was held that the judgment of the County Court estopped the trustee from asserting that the royalties were not the bankrupt's personal earnings.

The question as to the quantum of the allowance to be made to the bankrupt was another matter, and that allowance was varied; but Vaughan Williams J. said that he thought the fair inference from the judgment of the County Court Judge was that the trustee did decide that the sums in question were in the nature of personal earnings. The trustee was accordingly estopped from denying this to be the nature of the payments when made. The question whether the royalties vested in the trustee or in the bankrupt was a pure question of law and yet it was held that the decision in a previous litigation was an effective estoppel as far as the agitation of the same question was concerned in a subsequent matter.

Continuing his judgment in -- 'Hoystead v. Commissioner of Taxation (P)', Lord Shaw said that there would be no quieting of litigation unless the judgment of the County Court Judge was taken as it stood. It was plain, said Lord Shaw, that the 'res' in the case had been adjudged, that 'res' being, in figures, that six times 5000 should be the suitable deduction from the assessed property.

Applying that principle to the present case, it is clear that the 'res' in Suit No. 907 of 1942 was that the Government of the Province or Bombay had no right to levy non-agricultural assessment on a portion of the municipal street land which the Municipality had diverted to a fish market. The matter directly and substantially in issue in the present suit No. 1287 of 1944 being the same, I am of opinion that, according to the principle laid down in Section 11, Civil P. C., it would not be open to Government once again' to contend that it has a right to levy non-agricultural assessment on such land.

42. Then, at p. 170 in the same case -- 'Hoy-.stead v. Commissioner of Taxation (P)', we findobservations of importance for our present case:

'It is seen from this citation of authority thatif in any Court of .competent jurisdiction adecision is reached, a party is estopped, fromquestioning it In a new legal proceeding. Butthe principle also extends to any point,whether of assumption or admission, which wasin substance the ratio of and fundamental tothe decision.'

In -- 'Howlett v. Tarte', (1861) 10 CB (NS) 813 (Z4), Williams J. said that it was quite clear upon the authorities to which his attention had been called, and upon principle, that, if the defendant attempted to put upon the record a plea which was inconsistent with any traversable allegation in the former declaration, there would be an estoppel. In my opinion, the plea of Government in Suit No. 1287 of 1944 is inconsistent with the allegation which was traversed in the previous litigation (No. 907 of 1942). The allegation of the Municipality in that previous litigation was that Government had no right to levy non-agricultural assessment on a portion of municipal street land converted to another purpose and there is no doubt that the plea of Government in the subsequent suit is inconsistent with that allegation.

Clearly, therefore, in the spirit of the above observations of Lord Shaw in -- 'Hoystead v. Commissioner of Taxation (P)', the principle of 'res judicata' will apply and it will not be open to Government to contend that it has a right to levy non-agricultural assessment on a portion of the public street laud concerned in Suit No. 1287 of 1944. To my mind, the effect of the decision in the above mentioned case is that if a matter, fundamental to a particular decision, has been once adjudicated upon as between certain parties, it would not be open to reagitate the same matter in another suit between the same parties.

The previous decision would hold good not only in respect of the points which were raised in that case but to every point which would properly belong to the subject-matter of that case. The point whether Government is entitled to levy non-agricultural assessment in a case of this sort Is a point which properly belonged to the matter which was directly and substantially in issue In the previous litigation, and therefore, I think, the principle of 'res judicata' would apply in this ease.

43. In -- 'AIR 1921 Bom 87 (2) (Z 2 and 3), the Sharakati Inam village of Kasar Kolwan was divided half and half between Government and the plaintiff inamdar but not by metes and bounds. In 1885-36 survey settlement was introduced into the village without the consent of the inamdar. The defenciant-khots who were in the position of occupants in the village used to collect the assessment, half of which was paid by them to Government. The inamdar did not rest content with the other half, but levied payment at Mamul rate which was a higher rate. At first the defendants made the payment. In 1892 the plaintiff sued the defendants to recover Mamul dues for the years

The Court decreed the plaintiff's claim following the decision in -- 'Gangadhar Hari v. Morbhat Purohit', 18 Bom 525 (25). In 1917 the plaintiff again sued one of the defendants to recover the Mamul dues for the years 1915 and 1916. The defendant contended that all that the plaintiff was entitled to recover was one-half of the survey assessment under Ss. 216 and 217, Bombay Land Revenue Code; but the plaintiff contended that the defendant was barred by 'res judicata' from reagitating the question.

The matter was heard by a Pull Bench of the Bombay High Court, and Mr. Justice Shah in his judgment observed that the plea of 'res judicata' was not dependent upon the merits of the reason given for a particular conclusion. 'The conclusion, whether right or wrong, was binding upon the parties'. Its binding character did not depend upon the correctness of the reasons for the conclusion. It was stated that the words of Section 11did not lend support to the suggestion that if an issue was decided under any misapprehension of fact, it could be re-agitated in a subsequent suit. Shah J. went on to say that the section did not make any distinction between issues of law and other issues, but referred generally to questions directly and substantially in issue and heard and. finally decided.

His Lordship did not think that the distinction could be accepted without restricting the scope of the section in a manner not justified by the words of the section and without reading the words in the section which were not there.

44. Mr. Patel for the respondent referred us next to the case of -- '(1842) 1 Y & CCC 585 (R and S) (Smith's Leading Cases, 13th Edn. p. 694). It is true that the judgment of Knight Bruce V. C. in -- 'Barrs v. Jackson (R and S)', was reversed on appeal. Nevertheless it is recognized that the principles laid down therein present a full and clear statement of the law of estoppel. After discussing certain leading English authorities, Knight Bruce V-C. proceeded to say (p. 597):

'..... Lord Ellenborough certainly, and theCourt of King's Bench, in -- '(1803) 3 P&h; 348' (N)', decided most accurately..........that an-.allegation on record, upon which Issue has beenonce taken and found, is, between the parties:taking it, conclusive according to the finding,thereof so as to estop them respectively from:litigating that fact once so tried and found.'

These words are important. An allegation wasspecifically raised by the Municipality in Suit No.907 of 1942 that the Government of the Provinceof Bombay had no right to levy a fine or revenueor assessment on a portion of the municipal street,land which was diverted by the Municipality tothe purpose of a fish market. On that allegationa definite finding was recorded by the Court ofcompetent jurisdiction that the Government hadno right to levy non-agricultural assessment onthat portion of the street land.

Applying the principle laid down by Lord Ellen-borough in -- 'Outram v. Morewood (N)', to which Knight Brace V-C. referred approvingly in --'Barrs v. Jackson (R and S), it would follow that the abovesaid finding in Suit No. 907 of 1942 would be conclusive as far as the parties to that suit were concerned. It would estop them from agitating the same allegation again, namely, about the right of Government to levy non-agricultural assessment on a portion of a municipal street land diverted to another purpose. In my view, it would not make any difference whether the purpose in one case was a fish market and in another casea meat stall.

45. In -- 'Outram v. Morewood (N)', Lord Ellen-borough went on to observe further that the rule against re-agitating the matter adjudicated was subject generally to the restriction that however essential the establishment of particular facts might be to the soundness of a judicial decision however it might proceed on them as established, and however binding and conclusive the decision might, as to its immediate and direct object, be those facts were not all necessarily establishes conclusively between the parties, & that either might again litigate them for any other purpose as to which they might come in question, 'provided the immediate subject of the decision be not attempted to be withdrawn from its operation, so as to defeat its direct object'.

The proviso is important. We know that in Suit No. 907 of 1942 a decision was arrived at that Government was not entitled to levy non-agriculturalassessment on municipal street land diverted to be used as a fish market. If either of the parties to that litigation now makes an attempt to withdraw from the operation of that decision by setting up a case that Government has a right to charge non-agricultural assessment on a municipal street land diverted to another purpose, it would not be permissible to him to do so.

46. In : AIR1928Cal777 (H)', it was held that correctness or otherwise of a judicial decision had no bearing upon the question whether it did or did not operate as 'res judicata, A party taking a plea of 'res judicata' had to show that the matter directly and substantially in issue in a subsequent litigation had also been directly and substantially in issue in a previous suit and had been heard and decided.

The facts in -- 'Tarini Charan v- Kedar Nath (H) were that a suit was instituted in 1924 for recovery of rent for four years--1327 to 1330 B.S. --at Rs. 16 per year together with R-s. 2 for cess and interest on arrears of rent at 75 per cent, under a kabuliyat, in all amounting to Rs. 174-2-0. The said kabuliyat was executed by one Sitala Dasi in 1830 in favour of the plaintiff's predecessor' in-title and stipulated to pay interest on arrears of rent at 75 per cent, per annum. Then, in 1898, the holding was sold in execution of a rent decree and was purchased by the defendant's father.

In 1915, a similar rent suit was brought by the former landlord in respect of the same 'jote', and the defence was that the defendants,--as auction-purchasers, were not bound to pay interest at 75 per cent, under the kabuliyat and the same was in the nature of a penalty. That suit was decreed for the plaintiff landlord and no appeal was filed against that decree.

In the suit of 1924 the same defence was taken. The learned Munsif who tried the suit held that the doctrine of 'res judicata' would apply and decreed the suit for the plaintiff. On appeal, the learned Additional Judge held, relying on the decision in -- 'Anandamoyee Debi v. Saudamini Debya', AIR 1923 Cal 559 (Z6) that the defendant being an auction-purchaser was not bound by the high rate, of interest stipulated in the kabuliyat of 1880 and refused to give effect to the plea of 'res Judicata' taken by the plaintiff. An appeal was preferred to the High Court against that decision, and the division bench hearing that appeal referred the matter to a Full Bench. The following questions were referred for the opinion of the Pull Bench:

'(1) Whether an erroneous decision on a pure question, of law operates as 'res judicata' in a sub-sequent suit where the same question is raised?

(2) Whether the case of -- 'Anandamoyee Debiv. Saudamini Debya (Z6) has been correctlydecided?'

While dealing with the first point, it was observed by the Pull Bench that to say that the previous decision was wrong and that it was wrong on a point of law, or on a pure point of law, and that, therefore, it might be disregarded, was an indefensible form of reasoning. It was stated that it was not true that a point of law was always open to a party for agitation again in a subsequent suit. Rankin C. J., who delivered the judgment of the Full Bench, said that in India, at all events, n, party who took a plea of 'res judicata' had to show that the matter had been directly and substantially in issue in the former suit and also that it had been heard and finally decided.

It was pointed out that the phrase 'matter directly and substantially in issue' had to be givena sensible and businesslike meaning, particularly in view of Explanation 4 to Section 11, Civil P. C., which contains the expression 'grounds of defence or attack'. Rankin C. J. went on to observe that Section 11 of the Code said nothing about causes of action, a phrase which always required careful handling, nor did it say anything about points, or points of law, or pure points of law.

His Lordship said that as a rule, parties did not join issue upon academic or abstract questions, but upon matters of importance to themselves, and that all that the section required was that the doctrine be restricted to matters in issue and of these to matters which were directly as well as substantially in issue.

47. In -- '33 Bom 479 (B)', it was held that a plea of estoppel by 'res judicata' could prevail even where the result of giving effect to it would be to sanction what was illegal in the sense of being prohibited by statute. The facts in that case were that on 3-2-1903, a possessory mortgage of certain bhagdari land was executed by Govind Khodabhai and his brother in favour of the plaintiff. On the same day Govind passed a tenancy agreement to the plaintiff whereby he took the land as lessee for five years.

Further agreements of a similar nature were subsequently executed by Govind in the plaintiff's favour, the last being of 18-9-1902, for one year. After the expiry of that year Govind continued in possession of the land until his death in June 1905. On his death his widow, defendant 2, cultivated the land on behalf of herself and defendant 1, her minor son. The suit had been brought by the plaintiff to recover the rent of the land for two years, namely 1904-5 and 1905-6. No objection had been taken that rent accruing due in the lifetime of Govind was not claimable against the defendants personally in that suit.

The plaintiff went in special appeal, having failed in both the lower Courts. It was argued on behalf of the defendants that the tenancy agreements, whether express or implied, under which the mortgagor Govind and his heirs had remained in possession were void as being alienations tainted with the same vice as the principal transaction (mortgage) and that rent was therefore not recoverable. For the plaintiff it was con-tended that not only were these arguments unsound but also that they were no longer open to the defendants, because the plaintiff's right to recover rent had been established by an 'ex parte' decree against Govind obtained by the plaintiff for rent in respect of the years 1902-3 and 1903-4.

It was argued before their Lordships that the question raised before them by the defendants might and ought to have been raised in the suit in which the decree was obtained and must be taken to have been decided against the defendants since they (defendants) claimed title merely by virtue of their heirship to Govind.

Scott C. J., who delivered the judgment in that case, while dealing with the suggestion of the defendants that a plea of estoppel by 'res judicata' could not prevail where the result of giving effect to it would be to sanction what was illegal, said that that was not the law and that no such limitation was contained in Section 13 of the Code of 1882. His Lordship pointed out that if the legality of an act was a point substantially in dispute, it might be a fair subject of compromises in Court like any other disputed matter and thus become 'res judicata -- 'Great North-West Central Railway v.Charlebois', (1899) A C 114 (Z7). Chief Justice Scott went on to say (p. 482):

'..... .similarly if it (i.e., a point of law) isabandoned or not put forward by a defendant it must, having regard to the provisions of Section 13, be deemed to have been decided against him. The defences raised are therefore not now open to the defendants and the plaintiff is entitled to the rent claimed.'

To my mind, this decision is a clear authority for holding that even a pure point of law which was directly and substantially in dispute in a previous suit could be the subject of 'res judicata'.

48. In -- 'AIR 1933 PC 46 (W)', the owner of an impartible estate, the management of which had been vested in a manager appointed under Section 2, Chota Nagpur Encumbered Estates Act, 1876, shortly after its release to him in 1309, executed a maintenance grant in favour of the appellant,, one of his sons, yielding an annual income of Rs. 1,300 The sanction of the Commissioner was not obtained under Section 12A of the above Act to that grant. On attaining majority the appellant instituted proceedings against his father and two brothers claiming a maintenance grant of Rs. 4,000 a year and maintaining that the sanction of the Commissioner under the Act was not necessary.

A decree was passed in that suit that he was entitled to a maintenance grant yielding Rs. 4,000 annually, inclusive of the Rs. 1,300 payable under the grant of 1909, and that the grant of 1909 was 'legally valid'. In implementation of that decree the appellant's father executed in 1920 an additional maintenance grant up to the value of the decreed sum.

On a claim by the respondent, a son of the appellant's brothers, who subsequently became owner of the impartible estate, for a declaration that the two maintenance grants of 1909 and 1920 were illegal and not binding on him and for possession and mesne profits, it was held by their Lordships of the Privy Council that the question of the validity of the 1909 grant in view of Section 12A of the Act of 1876 having been directly and substantially in issue and decided in the maintenance suit, in which the similarity of the parties to those in the respondent's suit satisfied the conditions of Section 11, Civil P. C., the Court in the respondent's suit was not competent, in view of the provisions of s. 11. Civil P. C., to try the issue of the validity of the 1909 grant.

In the case before us also the question whether the Government of a Province is entitled to charge non-agricultural assessment under the provisions of the Land Revenue Code on a certain piece of municipal land which is diverted by the Municipality to another purpose, (e.g., a fish market in that case--hut a meat shop or any similar object might as well have been another purpose), was directly and substantially in issue in the previous suit of 1942 and was decided in that suit. It was again a matter directly and substantially In issue in the suit of 1944 between the same parties.

To my mind, the conditions laid down in Section 11, Civil P. C. are fulfilled in this case also, and accordingly, in view of the decision in -- 'Bindeswari Charan v. Bageswari Charan', (W) it would not be open to Government in the subsequent suit to agitate again the same question which was raised and decided in the previous suit, namely, their incompetence under the law to levy non-agricultural assessment on a land which was similar to the land which was the subject-matter of the 1942 suit. (49) In -- 'Keshav v. Gangadhar (D)', It was laid down that a decision of an issue of law operated as 'res Judicata' if the cause of action in the subsequent suit was the same as in the previous suit. Baker J. who delivered the judgment said that the general principle was that a decision on an issue of law operated as 'res judicata' if the cause of action in the subsequent suit was the same as in the previous suit, and it was immaterial if the decision was erroneous in law.

Now, it does not appear to me that merely because the pieces of land were different in the two suits it would make any difference to the substance of the issue, namely, the municipal challenge to Government regarding the latter's alleged right to charge non-agricultural assessment on a portion of the street land diverted to another purpose. The diversion, in one case, for fish market and in the other case, for meat shop, would again make no difference to the substance of the issue. At the risk of repetition, I would emphasize that the word 'substantially' in Section 11 has been deliberately used & not superfluously or inadvertently The purpose in using it is that for the application of the doctrine of 'res judicata' mere minor details which do not constitute the substance of the issue do not matter.

The idea in using the word 'substantially' is to bring out, as far as language can, a distinction between the substance of the matter and its unimportant details. In my opinion, details regarding area of the piece of land, numbers and dates of the orders of the Collector of Ahmedabad and such other matters are not so important. The question is what was the 'res' in the previous suit. The 'res', there is no doubt, was that Government had no legal right to charge non-agricultural assessment for a portion of the street land which was diverted by the Municipality to another purpose. That 'res' could not be agitated again between the same parties. Whether the diversion was for one purpose or another, whether the area diverted was this much or that much, and such other details were mere adjuncts or appendages of the 'res'. They were no integral part of the 'res'.

Therefore, the 'res' in both the suits being the same, I am of opinion that the provisions of Section 11, Civil P. C. would apply. The matters of detail which differed in the suits of 1942 and 1944 would not mean that the cause of action in both the suits was different. The cause of action, to my mind, was the same in both the suits, namely, the intrusion by Government on the right of the Municipality to hold, free of non-agricultural assessment, land which was vested in it and which was diverted by it to another purpose. The cause of action in both the suits being the same, the principle laid down in -- 'Keshav v. Gangadhar (D)' would help the respondent in this case. It may be noted that in -- 'Keshav v. Gangadhar (D) a reference is made to the following remarks of Rankin C. J. in : AIR1928Cal777 (H)', (p. 781):

'....to say, as a result of such disorderly procedure, that the previous decision was wrong and that it was wrong on a point of law, or on a pure point of law, and that, therefore, it may be disregarded, is an indefensible form of reasoning. For this purpose, it is not true that a point of law is always open to a party.'

These observations clearly lay down, as far as words can lay down, that a pure point of law can be the subject of 'res judicata'.

Indeed Rankin C. J. observed further (p. 782):

'In any case in which it is found that the matter directly and substantially in issue has been directly and substantially in issue in the formersuit and has been heard and finally decided by such Court, the principle of 'res judicata' is not to be ignored merely on the ground that the reasoning, whether in law or otherwise, of the previous decision can be attacked on a particular point. On the other hand, it is plain from the terms of Section 11 of the Code that what is made conclusive between the parties is the decision of the Court and that the reasoning of the Court is not necessarily the same thing' as its decision.

The object of the doctrine of 'res judicata' is not to fasten upon parties special principles of law as applicable to them, 'inter se', but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from re-opening or recontesting that which has been finally decided.'

What I am trying to emphasize is not that the reasoning which was employed in deciding Suit No. 907 of 1942 should be binding. We have nothing to do with that reasoning. The point is that the decision which was arrived at in that suit, being between the parties who are parties in the subsequent suit, should be binding in the subsequent suit, as the subject-matter in both the suits is substantially the same. There is no question in this case of fastening upon the parties to the subsequent suit any special principles of law as applicable to them 'inter se'.

The point is that the question of a right of Government to levy non-agricultural assessment on a portion of municipal land which was diverted to another purpose having once been adjudicated by a competent Court, the same could not be made the subject-matter of subsequent litigation between the same parties. On that subject, I am of the view that the decisions both of the Bombay High Court and the Calcutta High Court agree.

50. In -- 'Gokul Mandar v. Pudmanund Singh 29 I A 198 (Z1), it was observed by their Lordships of the Privy Council that the essence of a Code was to be exhaustive on the matters in respect of which it declared the law, and that it was not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction.

Applying that dictum to the present case, all that we are concerned with, having regard to the language of Section 11, is to see whether the matter which was directly and substantially in issue in the suit of 1942 is again directly and substantially in issue in the suit of 1944. I have already stated that matters of mere detail such as this much or that much area, this purpose or that to which the diversion of the land was made, this number or that number of the Collector's order, etc., should make no difference to the substance of the matter in issue which was involved in the two litigations.

51. In -- AIR 1930 Bom 135 (C)' it was said by Patkar J. that a question of law even though wrongly decided between the parties operated as 'res judicata'. His Lordship approvingly referred to -- 'Waman v. Hari', 31 Bom 123 (Z8) in which also it was held that an erroneous decision upon a point of law might yet as between the parties to it, but no further, be a sufficient 'res judicata' to preclude them from re-agitating it. '33 Bom 479 (B)' was also referred to, in which it was decided that a plea of estoppel by 'res judicata' could prevail even where the result of giving effect to it would be to sanction what was illegal in the sense of being prohibited by statute.

Clearly, therefore, the effect of these decisions and others to which I have already referred is to show that even a pure question of law, so far as the matter directly and substantially in issue between the parties in both the litigations is the same, can be the subject of 'res judicata'.

52. In -- 'Waman v. Hari (Z8)', to which I have already referred, the execution of a decree passed in plaintiff's favour was stayed pending appeal by the defendant on his furnishing security. Afterwards the plaintiff having proceeded in execution against the defendant and the surety, the Court allowed the plaintiff's claim against the surety. InA subsequent execution proceeding the plaintiff having presented a darkhast for further execution against the party, the Court passed an order allowing the claim. The order was confirmed in appeal. On second appeal by the surety, it was held by Beaman J. that an erroneous decision upon a point of law might yet as between the parties to it, but no further, be a sufficient 'res judicata' to preclude them from reagitating it.

53. The decision in -- 'AIR 1932 Bom 257 (E)' is to the same effect as the decision in -- 'AIR 1931 Born 570 (D)', namely, that a decision on an issue of law operates as 'res judicata' if the cause of action in the subsequent suit is the same as in the first suit. In my opinion, the cause of action in both the suits (of 1942 and 1944) is the same in substance, although the various formal details differ in the two cases. Thus the decisions of our own High Court support the view that, so far as the provisions of Section 11, Civil P. C. are concerned, there can be 'res judicata' even on a pure question of law.

54. I shall now proceed to deal with the cases of other High courts. In --- 'Sheoram v. Mulchand', AIR 1938 Nag 195 (Z9), it was held that a previous decision on a question of law was 'res judicata' in a subsequent suit.

In -- 'Sanichar Mahton v. Dhakeshwar PrasadNarain Singh', AIR 1930 Pat 585 (Z10), also it was held that an erroneous decision on a point of law would constitute 'res judicata' as much as a correct decision on a question either of law or fact, which meant that there could be 'res judicata' not only on a question of fact, a mixed question of law and fact, but also on a pure question of Jaw on which the parties might be at dispute regarding the matter which was directly and substantially in issue in the two litigations.

50. In : AIR1927All297 (U)', the decision given in --- '39 Mad 461 (V)' was dissented from and it was held that even on an erroneous decision on an issue of law a plea of 'res judicata' could be based. The facts in that case were very brief. It was a plaintiff's appeal in a suit for damages on the allegations that the defendant had wrongfully cultivated the plaintiff's share, a joint holding, and had further cut certain trees and taken certain fruit from groves belonging to the plaintiff. The trial Court held that the plaintiff's joint ownership of the tenancy was 'res judicata' and decreed the plaintiff's claim, allotting him Rs. 531-10-0 as damages. It was admitted on behalf of both parties that there were two previous suits in 1916 and 1920, in which the question of ownership had been decided in favour of the plaintiff.

The lower appellate Court, however, held that the matter was not 'res judicata' because the plaintiff's title was based on his acquisition by sale and foreclosure of a certain share in an occupancy holding, and that such a title was void under the provisions of the Tenancy Act. It further held that a wrong decision on a point of lawcould not be the basis of a plea of 'res judicata', and in support of that proposition reliance was put on the decision of the Madras High Court in -- '30 Mad 461 (V)', in which it was held that (p. 463):

'... .It has long been settled by authority in this Court and cannot, we think, now be questioned that the erroneous decision by a competent tribunal of a question of law directly and substantially in issue between the parties in a suit does not prevent a Court from deciding the same question arising between the same parties hi a subsequent suit according to law.'

Their Lordships went on to say that they were unable to concur in that expression of opinion. In their view, the words of Section 11, Civil P. C. were clear that 'No Court shall try any suit in which the matter directly and substantially in issue has......'

Their Lordships pointed out that in their view there was nothing in the above quoted words to limit the matter in issue to an issue of fact. This decision would again show that even on a pure question of law there could be 'res judicata' as long as, of course, the matter directly and substantially in issue in both the litigations was the same as between the same parties.

56. In -- 'Lilabati Misrain v. Bishun Chobey', 6 Cal L J 621 (Z11), it was held that a decision might operate as 'res judicata' although no issue had been expressly raised. The test to be applied was whether it plainly appeared that the question which was raised by the parties in their pleadings was actually submitted by them to the Court and judgment given on it. In Suit No. 9 (907?) of 1942 the question which was raised by the parties, who were also parties to Suit No. 1237 of 1944, was about the right or otherwise of the Government of the Province of Bombay to charge non-agricultural assessment on a certain piece of municipal land which was diverted by the Municipality to another purpose. A judgment on it was given by the Court which held that Government had no such right,

57. In -- 'Greenhalgh v. Mallard', (1947) 2 All E R 255 (Z12), Somervell L. J. observed that on the authorities to which he referred in his judgment, it would be accurate to say that 'res judicata' was not confined to the issues which the Court was actually asked to decide, but that it covered issues or facts which were so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the Court to allow a new proceeding to be started in respect of them. His Lordship referred to the case of -- 'Green v. Weatherill, (1929) 2 Ch 213 (Z13) in which Mr. Justice Maugham had quoted the following observations of Wigram V. C. in -- 'Henderson v. Henderson', (1843) 3 Hare 100 (Z14) (p. 115):

'....the plea of 'res judicata' applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.'

This would show that merely because the details about the identity of the lands in the two suits, or their areas, or the purpose to which they were diverted differed, it could not be said that the matter directly and substantially in issue in the two suits was different. The matter substantiallyin issue in both suits was the same and so the decision in the former suit would be 'res judicata',

58. Thus on the examination of the authorities, I am of the opinion that their weight is strongly in favour of holding that as long as the conditions specified in Section 11, Civil P. C., are satisfied namely, as long as the substance of the issue involved in the two litigations is the same, the rule of 'res judicata' will apply, irrespective of whether the question is a question of fact, or a mixed question of law and fact, or a pure question of law.

59. On behalf of the appellant our attention was invited to -- ' : AIR1942Bom322 ; -- 'AIR 1937 Mad 254 (FB) (T)'; -- 'AIR 1919 Cal 430 (M); -- '2 Ind App 283 (PC) (L)'; -- 'Kanta Devi v. Kalavati', Am 1946 Lah 419 (Z15); -- '(1919) 1 KB 323 (K)', and certain observations from Halsbury's Laws of England (2nd. edn., Vol. XIII).

60. In -- 'Mahadevappa v. Dharmappa (F)', a suit was brought in 1928 by defendant 1 which ended in a decree based on a compromise that the adoption of the plaintiff in 1927 by defendant 2, a widow in a joint Hindu family, was invalid as having taken place without the authority of her husband or consent of his coparceners. It was based on the view of the law which then was prevalent. There having been a change in the law in 1932, defendant 2 again adopted the plaintiff in 1935. In 1937 the plaintiff sued for a declaration that his adoption in 1935 was valid, when he was met with the plea that he was barred by 'res judicata' from setting up his adoption by reason of the decree in the suit of 1928.

It was held that the bar of 'res judicata' did not apply, for the plaintiff could not be regarded as litigating under the same title in both the suits inasmuch as the title that he had sought to make out in the two suits, though of the same nature, had been derived from different transactions. Now. in the first place, it appears to me that in our present case the cause of action in both the suits is the same. The right which is asserted by the Government of the Province of Bombay and challenged by the Municipality of Ahmedabad, which was a point for decision in the previous suit and which is also a point for decision in the subsequent suit, is the same. It does not matter whether a cause of action arises in reference to this or that piece of land, or this or that area, or this or that order of an authority, or this or that purpose to which the portion of the street land was put.

In substance, the cause of action in both the suits was the interference with, or the intrusion on, the alleged right of the Municipality to hold a piece of street land, whose use was diverted, free of non-agricultural assessment. It is pertinent in this context to turn once again to the words of Section 11, Civil P. C. which refer to the matter directly and substantially in issue being the same. Surely the substance of the suit of 1942 did not' lie in details such as area, purpose to which the land was diverted, the number and the date of the order of the Collector, etc.

The substance lay clearly in the assertion of an alleged right of the Municipality to hold the street land, which was diverted to another purpose, free from non-agricultural assessment, and that surely is the substance of the issue in the present litigation also. In -- 'Krishna Behari v. Brojeswari (L)', it was observed by their Lordships of the Privy Council that the expression 'cause of action' had to be construed liberally. In the present case there is no need even to resort to a liberal con-struction of the 'cause of action'. Even on a strict construction of the words 'directly and substantially in issue' used in Section 11, Civil P. C., I would hold that the issue in Suit No. 907 of 1942 and that in Suit No. 1287 of 1944 is substantially the same.

61. In -- 'Mahadevappa v. Dharmappa (F)', Mr. Justice Sen observed that the decision in the previous suit regarding defendant 2's power toadopt was not in reference to all time. In his opinion it was improbable that plaintiff had askedthe Court to consider the question of defendant 2's power to adopt throughout her lifetime. It did 'not appear to him, therefore, that defendant 2's right to adopt for all years was alleged or decided in the earlier suit. This limitation does not exist in the case before us. There is nothing to show that the decision in the suit of 1942 regarding the absence of right in Government to levy non-agricultural assessment on a certain piece of land wasto hold good as between the parties for a limited length of time only.

Accordingly I am of the opinion that the decision in -- 'Mahadevappa v. Dharmappa (F)' does not come in the way of our holding that even a pure question of law can be 'res judicata'.

62. In -- 'Chamanlal v. Bapubhai (A)' the plaintiff sought to recover eleven years' arrears of his share in a certain Government allowance received by the defendants and also prayed for an order directing the defendants to pay him and this heirs their proper share in future. The defendants contended that under the Limitation Act(15 of 1877) only three years' arrears could be recovered. In a previous suit brought by the plaintiff in 1874 against the same defendants it was decided by the High Court that twelve years' arrears could be recovered. The lower Court held that that decision bound the parties and that,therefore, the subsequent claim should be allowed.

It accordingly passed a decree for the plaintiff for fee amount claimed and directed that the defendants should pay to the plaintiff and his heirs for the future their share in the allowance. It was held (varying the decree) by Parsons and Ranade JJ. that a point of law though decided in a suit between the same parties could not be 'res judicata' and that the plaintiff under the Limitation Act (15 of 1877) was only entitled to recover arrears for three years. In the first place, as I have pointed out, there have been subsequent decisions of our own High Court in which a contrary view has been taken.

For instance, in--'AIR 1921 Bom 87 (2) (Z 2-3); it was observed that the expressions 'cause of action', or 'questions of fact', or 'mixed questions of law and fact', or 'pure questions of law' were not to be found in Section 11, Civil P. C. and that there could be 'res judicata' even on a pure question of law.

63. Besides, the decision in -- 'Chamanlal v.Bapubhai (A)' proceeded on a reasoning which inthe words of Parsons J. was this (p. 671):

'We do not think that the decision of this HighCourt in a suit between the same parties, thatarrears for twelve years could be awarded--'Chhaganlal v. Bapubhai', 5 Bom 68 (Z16) is'res judicata' in the sense that this Court isbound ever after to decide that a claim fortwelve years' arrears is good. That decisionwas passed when either Act 14 of 1859 or Act 9of 1871 applied to the claim. The present suit was brought after Act 15 of 1877 came into force, and it, therefore, must be applied.'

Clearly, therefore, the decision was based on the application of Act 15 of 1877. No doubt, incidentally his Lordship also observed that it appeared to him that a point of law could not be 'res judicata'. It seems to me that that observation was merely 'obiter'.

It was based on a decision of the Madras High Court in -- 'Parthasaradi v. Chinnakrishna', 6 Mad 304 (Z17) in which their Lordships said that the Courts were bound to ascertain and apply the law and not to make, law and that it was a suggestion repugnant to reason and to Justice, that, because a Court had erred in ascertaining the law, it was bound to repeat its error whenever the same question of law might arise between the same parties (p. 310).

A detailed examination of the authorities on the subject was not made by their Lordships of the Madras High Court before laying down the proposition to which I have just referred. In any case, with respect, this Court is not bound by the decisions of the Madras High court. The weight of the decisions of our own High Court is definitely in favour of holding that even on a pure question of law there can be 'res judicata'.

64. In -- 'Narayana v. Subramanian (T)', a ryot had resisted the claim of a landlord for a higher rate of rent with respect to a particular area and stated that he was liable to pay only the dry rate on the ground that the coconut plantation in the same was an 'improvement' within the meaning of Section 3(4)(f), Estates Land Act. In a prior litigation between the same parties for a previous year with respect to a portion of the area of the same holding it was held that the planting of a coconut garden was not an 'Improvement' and that the landlord was entitled to the enhanced rate.

It was held by their Lordships that the principle that a decision of law though erroneous was 'res judicata' in a later suit between the same parties should be confined only to the matters which existed at the time of the prior suit, unless some question of general principle was settled in the same, and that, accordingly, the decision in the prior suit did not apply to the new areas in the holding which were not planted with coconut trees at the time of the prior suit and in respect of which no claim was or could be made in the same.

Mr. Kotwal, relying on this authority, has argued that since the subject-matter of the present dispute which is involved in the suit of 1944 did not exist at the time of the suit of 1942, the decision arrived at in the previous suit (of 1942) would not operate as 'res judicata'. It is true that in the year 1942 the Municipality had not diverted this particular land, which is referred to in the suit of 1944, to another purpose, namely, the purpose of meat shops. But on that ground alone, I do not think the decision in the suit of 1942 would, not' operate as 'res judicata'.

What was held in -- 'Narayana v. Subramanian (T) was that unless some question of general principle was settled in the previous decision, that decision should be confined only to matters which had existed at its time. In the body of the opinion of the Court which was delivered by Mr. Justice Ramesam, he referred to an argument that in cases under the Bengal Tenancy Act it had been held that a decision between a landlord and a tenant as to the rate of rent in a prior year did not constitute 'res judicata' in later years when the same question came up and added that even there it had been held that, where the earlierdecision decided a matter of general principle, It would be 'res judicata' in later years. His Lordship supported this observation by reference to -- 'Gnanada v.' Nalini Baia Debi', AIR 1926 Cal 650 (218) and-- 'Sm. Ayetonnessa Bibi v. Amjed Ali', : AIR1928Cal717 .

The point, therefore, is whether the decision arrived at in a previous suit was a decision on a matter of general principle. If it was a decision on a matter of general principle, it would operate as 'res judicata'. There is no doubt, to my mind, that it was decided as a matter of 'general principle' in the suit of 1942 that Government had no right under the provisions of the Land Revenue Code to charge non-agricultural assessment on municipal street land which was diverted by the Municipality to another purpose. That being so, -- 'Narayana v. Subramanian (T)' would not help the appellant.

65. In -- 'AIR 1949 Cal 430 (M)', it Was held that an abstract question of law dissociated from and unconnected with the rights claimed or denied as between the parties to the litigation was of no importance or value to them or to the decision of the case itself and could not be said to be substantially in issue, and the principle of 'res judicata' could not apply. The respondent has no quarrel with this proposition at all. This is not a case of an abstract question of law dissociated from the rights claimed or denied as between the parties to the litigation.

The point of law which was to be decided in the previous suit of 1942 and which has come up for decision in the subsequent litigation of 1944 arose out of the rights claimed by the parties, namely, the right claimed by the Municipality on the one hand that they were not liable to pay non-agricultural assessment to Government for the street lands diverted by them to another use and the right claimed by Government on the other hand that it was entitled to charge non-agricultural assessment, it is thus difficult to understand how it could possibly be argued that we are dealing with an abstract question of law dissociated from the rights claimed or denied by the parties. I am of the view that this decision also cannot help the appellant.

66. Proceeding further, Mr. Kotwal drew our attention to -- '(1919) 1 KB 328 (K)'. Now, it is necessary to appreciate the facts of that case. By Section 7, Poor Relief Act, 1819, it was provided that

'It shall be lawful for the inhabitants of any parish in vestry assembled, to nominate and elect any discrete person or persons to be assistant overseer or overseers of the poor of such parish..... .and it shall be lawful for any two ofHis Majesty's justices of the peace... .by warrant....to appoint any person or persons who shallbe so nominated and elected to be assistant overseer or overseers of the poor....and everyperson or persons so appointed shall continue to be an assistant overseer of the poor until he or they shall resign such office, or until his or their appointment shall be revoked by the inhabitants of the parish in vestry assembled, and no longer.'

By Section 33, sub-s. (1), Local Government Act, 1894, it was provided that

'The Local Government Board may, on the application of the council of any....urban district, make an order conferring on that council.... the appointment of overseers and assistant over-seers, the revocation of appointment of assistant overseers.....'

By sub-s. (4), it was provided that

'The order... .shall make such provisions as may seem necessary and just for the preservation of the existing interests of paid officers.'

Before the passing of the Local Government Act, 1894, the plaintiff was duly elected assistant overseer of the poor of a certain parish by the inhabitants of the parish in vestry assembled at a salary, in the events which happened, of 85 a year, and was duly appointed by a warrant of justices. In 1898 the Local Government Board, acting under Section 33 of the Act, made an order conferring on the council of the urban district in which the parish was situate the power of appointing and, subject as mentioned in Art. 6, of revoking the appointment of the assistant overseer of the parish. Article 6 provided that

'Nothing in this order snail apply to the revoking of the appointment of any person now holding. office as assistant overseer in any parish to which this order extends, nor, without his consent, to his re-appointment, and every such assistant overseer shall continue to hold office upon the same terms as at present..'

In September, 1905, the inhabitants of the parish, without revoking the plaintiff's appointment and without his resigning, passed a resolution increasing his salary by 115 a year, and in August, 1906, two justices issued a warrant which, after reciting that the inhabitants had nominated and elected the plaintiff and had fixed the yearly sum of 200 as his salary together with such a sum as he might be allowed for work in connection with the registration of voters, proceeded to appoint. him assistant overseer to perform the duties and receive the salary fixed by the inhabitants.

In an action by the plaintiff against the overseers of the parish, who refused to pay the increased salary, it was held on 23-3-1907, that the plaintiff had not been duly appointed at the increased salary, because (among other reasons) the powers of re-nomination and re-election, which? were necessary before the salary of an assistant overseer could be increased, had been vested in the urban district council.

In September, 1912, the inhabitants, without any resignation of the plaintiff or revocation of his appointment, resolved that he should be paid a salary of 250 a year for performing the duties of overseer of the poor with certain exceptions; and in October, 1912, two justices issued a warrant which, after reciting that the inhabitants had nominated and elected the plaintiff and had fixed his yearly salary at 250 proceeded to appoint him assistant overseer to execute the duties and receive the salary fixed by the inhabitants.

Doubts having arisen as to the validity of this appointment, the Local Government Board in 1915 made an order substituting for Art. 6 of their order of 1896 the following:

'(1) Nothing in this order shall

(a) apply to the revocation of the appointment of any person now holding office as assistant overseer in any parish to which this order extends;

(b) preclude any such person as aforesaid,.... from being re-appointed to such office as if this order had not been made.

(2) Every person holding office, or re-appointed as aforesaid, shall hold office by the same tenure and upon the same terms and conditions as would, if this order had not been made, have attached to his holding of the said office, whether on any appointment subsisting at the date ofthis order or on any appointment made thereafter.'

In 1918 the inhabitants again, without any resignation of the plaintiff or revocation of his appointment, resolved that the plaintiff should be paid a salary of 250 a year for performing the duties of overseer of the poor with the same exceptions as before, and again two justices issued a warrant reciting his nomination and election by the inhabitants and appointing him to be overseer of the poor and empowering him to perform the duties and receive the salary fixed by the inhabitants.

In an action by the plaintiff against the overseers of the parish claiming a declaration that he was entitled under the warrant of 1912, or alternatively under the warrant of 1916, to salary at the rate of 250 a year, it was held, by Bankers and Warrington L. JJ., that under Section 7. Poor Relief Act, 1819, the inhabitants in vestry assembled had no power to increase the salary of an assistant overseer unless either he resigned his office, or they revoked his appointment, or it terminated by effluxion of time; and that, as one of these events had not happened, the warrants of 1912 and 1916 were Inoperative. It was also held that the plaintiff was not estopped by the judgment of 23-3-1907, from contending that the power of revoking his appointment and re-electing him at an increased salary remained in the vestry after the order of the Local Government Board made in 1896.

In the body of the judgment, which was delivered by Bankes L. J., he observed as follows (pp. 344-345):

'......No question of fact which was directly inissue between the parties to the action before Bray J., and which was decided by him, could be further litigated by either party, and the same would apply to the exact point decided by Bray J., whether it were a point of law or of mixed law and fact. But the reasons which led the learned Judge to his decision upon the precise point do not bind the parties in a sub-sequent litigation. I need only refer to two cases in support of this view.

'In -- '(1803) 3 P&H; 343 (N)', Lord Ellenborough C. J. said: 'The recovery of itself in an action of trespass is only a bar to the future recovery of damages for the same injury : but the estoppel precludes parties and privies from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them, or by those to whom they are privy in estate or law, has been, on such issue joined, solemnly found against them'.'

Warrington L. J. in the same case has said (p. 351):

'....As to the attempt made in 1905 it is only necessary to say that the judgment of Bray J. in the former action is. conclusive against the respondent to this extent, that the resolution of the vestry in September, 1905, and the warrant of the justices in August, 1908, were not effectual to increase his salary. That was the precise point decided in that action, and that point he is estopped from disputing; he does not indeed dispute it in this action. The reasons for the decision and the grounds on which it was based are not binding upon him. I need not refer tothe authorities.'

With very great respect, it appears that the ultimate decision of their Lordships in that case was inconsistent with the principles laid down by them in the body of the judgment to which I have already referred, and, in any case, it seems that the supervention of the order of the Local Government Board in 1915 had not a small effect on the ultimate decision in the subsequent litigation, since it was clear that in view of that order the inhabitants of the parish would be within their rights to increase the salary of the overseer and the plaintiff's rights, at the date of the subsequent litigation, would not be barred by the decision in the suit of 1907 at which time the Local Government Board Order of 1915 did not exist.

67. What we are concerned with in our present case is the interpretation of law of 'res judicata' as embodied in Section 11, Civil P. C. Of course, the English decisions are very valuable for the help and guidance they give, but, all the same, the point is that we are interpreting a section of an Indian statute and therefore the words of that statute are-important. It appears clear to me that the matter directly in issue in both the suits being substantially the same, the doctrine of 'res judicata' as contained in Section 11, Civil P. C. will apply.

68. In -- 'Krishna Behari v. Brojeswari (L)', it was held that where a material issue had been tried and determined between the same parties in a proper suit, and in a competent Court, as to the status of one of them in relation to the other, it could not be again tried in another suit between them. It was also held that the expression 'cause of action' could not be taken in its literal and most restricted sense; it was to be construed rather with reference to the substance than to the. form of the action.

As I have pointed out, the rights of the parties-- the Municipality of Ahmedabad and the Government of the Province of Bombay --in relation to each other as far as the question of levying non-agricultural assessment by one party on a portion of the land belonging to the other party and diverted to another use by that party is concerned, were adjudicated upon in the suit of 1942. According to -- 'Krishna Behari v. Brojeswari (L)', therefore, the same question cannot again be tried in a subsequent suit between the same parties. I have also pointed out that even without interpreting liberally the words 'matter substantially in issue' it appears clear on the facts of the case that the substance of the matter in issue in both the suits is the same.

69. Lastly, our attention was invited by Mr. Patel to certain observations in Halsbury's Laws of England. Vol. XIII, 2nd edn. For instance, we were referred to Art, 464 at page 408, which says: 'The most usual manner in which questions of estoppel have arisen on judgments 'inter partes' has been where the defendant in an action raised a defence of 'res judicata', which he could do where former proceedings for the same cause of action by the same plaintiff had resulted in the defendant's favour, by pleading the former judgment by way of estoppel. In order to support that defence it was necessary to show that the subject-matter in dispute was the same... .(that is to say, that everything that was in controversy in the second suit as the foundation of the claim for relief was also in controversy in the first suit), that it came in question before a Court of competent jurisdiction, and that the result was conclusive so as to bind every other Court.

'But, provided a matter in issue is determined with certainty by the judgment, an estoppel may arise where a plea of 'res judicata' could never be established; as where the same cause of action has never been put in suit. A party is precluded from contending the contrary of any precise point which, having been once distinctly put in issue, has been solemnly found against him.'

In this case it may be emphasized at the risk of repetition that the precise point, namely, the right of Government to levy non-agricultural assessment on a municipal street land diverted to another purpose, was once distinctly put in issue in the suit of 1942. It was 'solemnly' foundagainst the State of Bombay in that suit. There-fore it would appear from the above quoted observations from Halsbury that the Government would be precluded from contending in the subsequent litigation that they have a right to levy non-agricultural assessment.

70. This practically finishes all the authorities which we were referred to. On a careful perusalof them, they' appear to me to be on the whole in favour of holding that even on a pure question of law there can be 'res Judicata' so long as the conditions referred to in s. 11, Civil P. C. are fulfilled. What matters is the substance of the issue directly raised in a former suit and a subsequent suit. As facts in no two cases can be identical, there are bound to be differences in two suite regarding matters of detail; and obviously all matters of detail are not substantial. Someof them may be substantial and others may be merely descriptive and may not be affecting the substance of the contention which is fundamental to a particular suit.

In both the suits in this case (suit of 1942 and suit of 1944) the fundamental point on which the parties went to the Court was the right or otherwise of Government to levy non-agricultural assessment on a certain type of land (municipal street land diverted to another use) and as that issue was once decided by a competent Court in a former suit, it would not be open to either party subsequently to agitate it again in a subsequent action.

This seems to me the gist of the various decisions to which we have been referred and with which I have dealt. The result, therefore, would be that in my view it would not be open to Government in this case to contend that pursuant to the provisions of the Land Revenue Code they are entitled to charge non-agricultural assessment on a, piece of land 60 1/2 square yards in area, which is a portion of the municipal street land and which has been diverted by the Municipality for the purpose of meat stalls. Such a contention would be barred by the principle of 'res judicata'.

71. On the merits of the case, that is to say, assuming that the principle of 'res judicata' does not apply in this case and assuming that it is open to Government to contend in spite of the decision in the previous suit of 1942 that they have a right to levy non-agricultural assessment on this piece of land, 60 1/2 square yards in area which has been converted by the Municipality for use as meat stalls, I agree with my learned brother for the reasons stated by him that it would be competent to Government under the provisions of the Land Revenue Code to levy non-agricultural assessment. I do not see why any distinction should be drawn between the ownership of a Municipality and the ownership of others, although I do see of course that the Municipality is a public body.

The distinction between ownerships on such ground as this does not appear to me to be within the purview of Section 45, Land Revenue Code. Therefore, 'assuming that the bar of res judicata under Section 11, Civil P. C. does not apply in this case', then, as far as the merits of the case are concerned, I agree with my learned brother.

Curiam, J.

72. As we are unable to agree on the question as to whether the Government of the State of Bombay is barred by the principle of 'res judicata' because of the decision in Suit No. 907 of 1942 from contending that they were entitled to levy assessment under the provisions of Section 45, Bombay Land Revenue Code, on the street land in suit converted for use as meat shops, the papers should be placed before the Honourable the Chief Justice for further action under Clause 36 of the Letters Patent.


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