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irawa Laxmana Mugali Vs. Satyappa Shiddappa Mugali - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Appeal No. 13 of 1910
Judge
Reported in(1910)12BOMLR766
Appellantirawa Laxmana Mugali
RespondentSatyappa Shiddappa Mugali
DispositionAppeal allowed
Excerpt:
.....of non-payment of deficiency in court fee-second suit for trial on the same merits-practice.;in a previous suit between the parties there was a decision on the merits; but the suit failed on the ground that the plaint had been undervalued and the plaintiff had refused to pay the additional court-fee. a subsequent suit having been brought between the parties for determining the same issues the decision in the first case was pleaded as res judicata :-; that the failure of the first suit on non-payment of additional court-fees was sufficient by itself for the dismissal of the previous suit; and that, therefore, the findings on the issues on the merits, not having been necessary for the decision of the suit, could not have the force of res judicata. - - , the former suit was not heard and.....n.g. chandavarkar, kt., j.1. there was no doubt a decision on the merits in the previous suit, which is relied upon by the appellant as barring the present suit as res judicata; and the title of reversionary heir, which was claimed there as it is claimed here by the first respondent, was negatived by the finding of the subordinate judge, who tried that previous suit. but the subordinate judge also gave another reason for dismissing that suit of the respondent. the reason was that the plaint had been undervalued and that the plaintiff (the first respondent in this second appeal) had refused to pay the additional court fee. if this last reason was sufficient by itself for the dismissal of the previous suit, the findings on the issues on the merits ' were not necessary for its decision and.....
Judgment:

N.G. Chandavarkar, Kt., J.

1. There was no doubt a decision on the merits in the previous suit, which is relied upon by the appellant as barring the present suit as res judicata; and the title of reversionary heir, which was claimed there as it is claimed here by the first respondent, was negatived by the finding of the Subordinate Judge, who tried that previous suit. But the Subordinate Judge also gave another reason for dismissing that suit of the respondent. The reason was that the plaint had been undervalued and that the plaintiff (the first respondent in this second appeal) had refused to pay the additional Court fee. If this last reason was sufficient by itself for the dismissal of the previous suit, the findings on the issues on the merits ' were not necessary for its decision and cannot have the force of res judicata: Ghela Iccharam v. Sankalchand Jetha ILR(1898) 18 Bom. 597.

2. The question, then, is whether the ground of undervaluation was sufficient by itself for the dismissal of the previous suit. Section 54 of the Code of Civil Procedure (Act XIV of 1882), which was in force then, required that, the plaint shall be rejected,' if undervalued. Instead of rejecting the plaint before registration, the Subordinate Judge dismissed the suit after its registration and after trial. But after the suit had been registered, the Subordinate Judge had power to reject it at any subsequent stage on the ground of improper valuation. As held by this Court in Dullabh Jogi v. Naratan Lakho (1867) 4 A.C.J. 110, whether a suit is rejected on that ground before registration or at any subsequent stage, the effect is the same; ' as if the plaint had been originally rejected '. It was also held in that case that the rejection of a suit on the ground of undervaluation, at any stage of it, does not make it res judicata, for the purposes of a subsequent suit on the same cause of action or litigating the same title, because, as was said there by Couch C. J., ' the former suit was not heard and determined, for it failed by reason only of an informality; and it would be contrary to all principles of justice that the parties should be held to be conclusively barred thereby.'

3. For these reasons the order of remand appealed from must be confirmed with costs.

Heaton, J.

4. I concur in the order and reasons for it but express no opinion on the question whether if the decision in the earlier suit were to be regarded as a decision on the merits it would operate as a bar under Section 11 of the Code of Civil Procedure, 1908.


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