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Raja Jagadish Chandra Deo Dhabal Deb Vs. Gaur Hari Mahato - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1936)38BOMLR1128
AppellantRaja Jagadish Chandra Deo Dhabal Deb
RespondentGaur Hari Mahato
DispositionAppeal dismissed
Excerpt:
res judicata - point not taken in pleadings or in issues-whether, it can be allowed to be raised in appeal-document-when secondary evidence is admissible.;a party cannot raise the question of res judicata in appeal if it was not properly raised in the pleadings or in the issues. - - their lordships are not satisfied that any good reason has been shown by the appellant for interfering with those orders, and accordingly the appeals will fall to be dismissed and their lordships will humbly advise his majesty accordingly......high court dated august 8, 1933. two questions are involved, the first being the question of res judicata. the high court declined to allow the appellant to go into the question of res judicata on the ground that it had not been properly raised by the pleadings or in the issues, particularly in the issues. it seems to their lordships that the high court were right in this view, because it was necessary for the appellant, if he were going to make use of the judgment in the suit of 1900 as res judicata, to identify the subjects in dispute in the present case with the subjects which in that case were held to belong to the rajah and not to the tenants.2. the other point is a mere matter of procedure, the question with regard to the use of exhibit 17 as secondary evidence. that does not.....
Judgment:

Thankerton, J.

1. These appeals are taken against two decrees of the High Court dated August 8, 1933. Two questions are involved, the first being the question of res judicata. The High Court declined to allow the appellant to go into the question of res judicata on the ground that it had not been properly raised by the pleadings or in the issues, particularly in the issues. It seems to their Lordships that the High Court were right in this view, because it was necessary for the appellant, if he were going to make use of the judgment in the suit of 1900 as res judicata, to identify the subjects in dispute in the present case with the subjects which in that case were held to belong to the Rajah and not to the tenants.

2. The other point is a mere matter of procedure, the question with regard to the use of exhibit 17 as secondary evidence. That does not appear to their Lordships to be a question of fact, but rather a question of procedure and the orders made by the High Court were to remit the suits to the Court below for re-hearing after giving the plaintiffs in title suit No. 68 of 1929 an opportunity of calling for the original of exhibit 17 and considering it or, if not produced, then considering secondary evidence, if any, of the teriz; that is what exhibit 17 purports to be. Their Lordships are not satisfied that any good reason has been shown by the appellant for interfering with those orders, and accordingly the appeals will fall to be dismissed and their Lordships will humbly advise His Majesty accordingly.


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