1. This is an application under Section 115 for revision of an order passed by the First Class Subordinate Judge of Dhar-war, or rather I should say a finding on an issue, that the suit No. 46 of 1919 is not barred by res judicata by reason of the Privy Council decision in a similar suit and therefore the suit should be heard on the merits.
2. The facts, so far as they are necessary for the determination of this application are that there were certain dealings between three firms at Bellary in the Madras Presidency and one firm in the Dharwar District, and in connection with these transactions certain obligations were incurred which formed the subject of two suits, one in Bellary brought by the present defendants against the present plaintiff', and one in Dharwar by the plaintiff against the present defendants, the parties being same in the two suits. The Bellary suit went in appeal to the Madras High Court, and pending hearing of the appeal, the hearing of the Dharwar suit was stayed. Ultimately the Madras High Court ordered the suit to be dismissed on the ground that the contract of partnership, on which the plaintiffs in that case sued, was illegal. The decision is in Pannaji Devichand v. Senaji Kapurehand I.L.R. (1926) Mad. 175 Against this, there was an appeal to the Privy Council and the Privy Council upheld the decision of the Madras High Court, the case being Senaji Kapurchand v. Pannaji Devichand : (1930)32BOMLR1607 After the disposal of the case by the Privy Council it was contended in the Dharwar suit that in the face of this decision the suit could not go on as the cause of action was the same as in the Bellary suit and therefore in view of the Privy Council decision the suit would not lie. The Subordinate Judge, after hearing arguments on this question, wrote a finding on this preliminary issue in which he held, for reasons into which I need not go, that the present suit was not barred by res judicata, the facts on which the plaintiff's plaint is based being distinguishable from those in the Bellary suit. The suit was accordingly ordered to proceed on the merits. Against this finding, which of course involves the further progress of the suit, a revisional application under Section 115 of the Civil Procedure Code has been presented to this Court by the defendant.
3. A preliminary objection is taken by the learned counsel on behalf of the plaintiff-opponent that the application will not lie. In the present case what we have is a finding on an issue, viz,, whether the suit is barred by res judicata or not, and against that an application in revision is not competent, because, first, this is not a case decided against which revision will lie, and, secondly revision of the finding on an issue of res judicata is not governed by Section 115.
4. There is a good deal of authority on the point So far as the question as to the finding that a suit is not barred by res judicata being subject to revision or not is concerned, we have two decisions of this Court one in Sari Bhikaji v Naro Vishvanath I.L.R. (1885) Bom. 432 and the other in Amritrav Krishna Deshpande v. Balkrishna Ganesh Amrapurlcar I.L.R. (1887) Bom. 488 In Hari Bhikaji v. Naro Vishvanath the question was practically the same as in the present case because it was held that the subject-matter of the suit was not res judicata. As no second appeal lay to this Court, the suit having been of the nature cognizable in a Court of Small Causes, a revision application was made and it was held that a wrong decision on a question of res judicata is not a subject for the interference of the High Court under Section 622, that is, Section 115 now of the Code of Civil Procedure. It was pointed out that even if a decision on the question of res judicata was wrong, it could not be interfered with as it was a question which the lower Court had jurisdiction to try and was bound to try, and even if the decision is wrong in law, that will be no ground for interference in revision, as laid down by the Privy Council in Amir Hassan Khan v. Sheo Baksh Singh I.L.R. (1884) Cal. 6 L.R. 11 IndAp 237 and subsequently in Balkrishna Udayar v. Vasudeva Aiyar This was again followed in Amritrav Krishna Dsehpande v. Balakrishna Ganesh Amrapurkar, in which the decision was the reverse way, that the suit was barred by res judicata. It was held that the decision, even though wrong, of a question of res judicata was not a failure, or a cause of failure, to exercise jurisdiction, and did not warrant the interference of the High Court under Section 622 of the Civil Procedure Code.
5. It is further argued that the finding on the issue is a case decided, against which revision lies. There is a very large body of authority on this point both of this Court and other Courts, and the learned counsel for the opponents has relied on Motilai Kashibhai v. Nana I.L.R. (1892) Bom, 35 Bai Rami v. Jaga Dullabh (1919) 22 Bom. L.R. 801 Damodar v Raghunath I.L.R. (1902) Bom. 551 4 Bom. L.R. 267 Chimanbhai v. Keshavlal I.L.R. (1823) Bom. 721 25 Bom. L.R. 443 Lal-Chand-Mangal Sen v. Behari Lal-Mehr Chand I.L.R. (1924) Lab. 288 Rajah Amir Hassan Khan v. Sheo Bahsh Singh (1884) L.R. 11 IndAp 237 Balahrishna Udayar v. Vasudeva Aiyar Rudra Prasad Pande v. Mathura Prasad Pande I.L.R. (1925) All. 916 and Buddhu Lal v. Mewa Ram I.L.R. (1921) All. 564 which is exactly on the point, and it was held that the finding on an issue is not covered by Section 115. So also in Isa Adam v. Bai Mariam (1926) 29 Bom. L.R. 564 it was held that the High Court will not interfere, under Section 115, Civil Procedure Code, with an interlocutory order made by the lower Court during the pendency of the suit deciding that certain evidence is inadmissible.
6. The learned counsel for the applicant has pointed out that the two plaints being founded on the same cause of action which has been held by the Privy Council to be unsustainable, for certain reasons which we need not mention, the order that the suit should go on must ultimately involve expense of money, waste of time and trouble with no result. He refers to Bai Atrani v. Deepsing Baria Thakor I.L.R. (1915) Bom. 86 17 Bom. L.R. 1097 showing that an interlocutory order is a case decided and Administrator-General of Burma v. G.R.V.V. S. Chettyar Firm I.L.R. (1927) Ran. 742 so also Secretary of State for India v. Narsibhai Dadabhai I.L.R. (1923) Bom. 43 25 Bom, L.R. 992 Now, so far as Secretary of State for India v. Narsibhai Dadabhai is concerned, a question of jurisdiction was involved there inasmuch as on the finding which was recorded as to the necessity of the Secretary of State being added, the question of the jurisdiction of the Court to try the case at all depended. In Bai Atrani v. Deepsing Baria Thahor it is distinctly stated in the judgment that no other remedy was available. Administrator-General of Burma v. G.R.V.V.S. Chettyar Firm is an exceedingly clear case which on the face of it showed that the widow did not represent the estate of the deceased inasmuch as letters of administration had been granted to the Administrator-General. The learned counsel further relied on C. Ross Alston v. Pitambar Das I.L.R. (1903) All. 509 and Bombay Steam Navigation Go. v. Vasudev (1937) 29 Bom. L.R. 1551--this last is also stated to be a case of a special character--but all these cases proceeded to their determination and there had been a final decision as between the parties.
7. The overwhelming balance of authority is in support of the view that a finding on an interlocutory matter followed by an order is not a case decided within the meaning of Section 115 and that the High Court will not interfere in a case where the party aggrieved has another remedy open to him by way of appeal. In the present case, supposing the ultimate decision of the case to be in favour of the plaintiff, it would be open to the defendant to appeal to this Court against the decree of the lower Court. Moreover, we have direct authority of this Court on this very point as to the finding on an issue of res judicata not being open to revision under Section 115. In the face of the weight of authority by which the point is covered, I am bound to follow it. It may be pointed out that it is extremely inconvenient if the High Court should interfere in revision with a finding on an issue of res judicata which will be equivalent to the final disposal of the suit. In these circumstances I have no hesitation in holding that the present finding on the issue of res judicata or rather the interlocutory order that the case should proceed is not one against which revision under s, 115 is open to the party aggrieved.
8. Consequently the rule will be discharged with costs.
9. I agree.