1. The short point arising for consideration in these revision petitions is whether the doctrine of res judicata operates as a bar to the maintainability of these actions. The suits are instituted by the Srikakulam Municipality represented by its Special Officer and Secretary and are laid against the same defendant for recovery of property tax due in respect of several items of property for the ear 1962-63 and 1963-64. The main defence is that the suits are bared because of earlier decisions in respect of the identical claims. Formerly suits were brought by the Municipal Council against the defendant for recovery of arrears of tax levied by it on the very same item of property. The suits related to the three years 1961-61 to 1963-64. The plaintiff succeeded in the suits but the defendant preferred appeals form the decrees of the trial court. The appeals related only to the two later years. The decree in respect of the first year was not the subject-matter of the appeal in any of the cases.
2. The appeals were allowed and the suits dismissed on the ground that the sanction of the Municipal Council was not obtained before their institution and consequently they were not maintainable. After the requisite sanction was got, the present batch of suits is laid. The District Munisf rejected the plea of the bar of res judicata and granted decrees in all the suits. But the learned District Judge held that the dismissal of the earlier suits is a decision which bars the present actions. In these revision petitions the view of the Lower Appellate Court is challenged. As the valuation in each of the suits is less than Rs. 1000/- the plaintiff is questioning the decrees of the lower appellate Court under Section 115 of the Civil P. C.
3. The contention urged on behalf of the petitioner is that there was no hearing and decision of the question whether the assessments in each of the case are recoverable and that the former batch of suits having been thrown our, on a ground unrelated to the merits of the issue directly invoked in the present suits, no bar of res judicata arises. This petition is countered by the learned counsel for the respondents who maintained that the course of action for the earlier set of suits and the present bunch of suits is the same and that the rule that there can only be but one proceedings on foot of the identical cause of action is applicable, notwithstanding that, the dismissal of the suits on the former occasion was due to a defective form of the actions.
4. At the outset it may be mentioned that none of the decisions relied on by the learned District Judge relay bears on the point arising for decision. though numerous reported cases were adverted to by the District Judge, none of them can be considered relevant for the decision of the question on hand. The learned counsel for respondent could not derive any help from the cases cited by the District Judge and rightly conceded that they are of no help to the defendant. I am therefore, not dealing with the authorities cited by the lower appellate court and there is no need to show by reference to the ratio of each of them the patent irrelevancy of the citations.
5. The question has to be considered with reference to the express terms of Section 11, of the Civil P. C. because one is concerned herewith the effect of a decision in a former suit. One of the conditions for the application of the bar of res judicata to a second or subsequent suit is that the matter directly and substantially in issue of the subsequent suit must have been heard and finally decided' by the court in the former suit. The argument advanced for the petitioner is based on the requirement viz., that the issue must have been heard and decided in the former suit and that where the former adjudication did not decide the issue there can be no bar to the maintainability f the subsequent suit. It is urged that the dismissal of the suits by the appellate Court on the former occasion left untouched the issue whether the assessments for the tow years 1962 to 1964. were recoverable or not. There was no adjudication on the issue of the validity or enforceability of the claim.
The claim did not fail by reason of nay adverse pronouncement as to the plaintiff's right to enforce it. The suit were thrown out for the reason that the requisite sanction for the suit itself was lacking. The failure of the plaintiff on that ground does not debar him from enforcing the claim in a subsequent action. This, in essence, is the argument in support of the revision petitions.
6. The learned counsel relied on several decisions which may now be examined. The Calcutta High Court held in Jadu Nath Mandal v. Amulya Krishan Kundu, Air 1927 Cal 794 that to constitute a matter res judicata it is necessary that the matter must have been heard and finally decided in the former suit. a Division Bench of that Court pointed out that where the former suit was dismissed only on the ground of on-joinder of parties, the matter cannot be said to have been heard and finally decided and a subsequent suit on the same cause of action is not barred. Support for that view was derived from the pronouncement of the Privy Council in Shoesagar Singh v. Sitaram Singh, (1897) ILR 24 Cal 616 (PC). There, the dismissal of a suit was on a preliminary point and no issue was tried or decided. In the case in AIR 1927 Cal 794 (Supra) there was a decision on some issues in the earlier suit. This however, was held to be immaterial and the test to be adopted is whether the issue arising in the subsequent suit was heard and decided in the former suit. If the decision in the former suit is on an issue which is unnecessary for the determination of the latter suit the earlier decision cannot constitute an obstacle to the trial of the subsequent action.
7. In Srikakula Chinna v. Pannapati Elias, : AIR1954Mad1024 Rajamannar, C. J. was called upon to deal with the question whether the bar of res judicata applied to a suit in which the validity of an execution sale was ink issue. The application made by the judgment-debtor under Order 21, Rules 72 and 90 of the Civil P. C. was dismissed on the ground that it was filed out of time. The transferee from the auction purchaser filed the suit complaining of dispossession by the judgment-debtor. The defendant pleaded that the execution sale was invalid. The question arose whether the adverse result in the application made under Rules 72 and 90 of Order 21 was an impediment to the suit. The learned Chief Justice stressed the circumstances that the petition to have the sale set aside failed on the ground that it was presented too late. he added:
'There was no adjudication upon the substantial question raised by them as to the validity of the sale. The question was never heard and disposed of finally.'
8. Rajamannar, C. J. followed and applied the decision in Jayarama Aiyar v. Vridhagiru Aiyar, ILR 44 Mad 35 = (AIR 1921 Mad 583) where the facts were similar. Spencer, J., observed in the decision in China Dandsi v. P. Tatiah, 41 Mad LJ 261 = (AIR 1921 Mad 279) that:
'The appellant's pleader urged that the defendant having once applied to have the sale set aside and having filed was bound by 'res judicata' from arising the contention that the sale was invalid even though his application was dismissed upon the ground that he was out of time without a determination of the question relating to the validity of the sale. he has however failed to show us how this case comes within the rule of 'Rs judicata' as defined in Section 11, Civil P. C. It is quite clear that there was no adjudication upon the substantial question raised in the defendant' petition as to the validity of the sale and therefore, it cannot be deemed to have been a matter directly and substantially in issue in any prior proceeding.'
9. A Full Bench of this Court enunciated in Veeranna v. Sayamma, AIR 1958 Andh Pra 363 (FB) the rule of res judicata deduciable form Section 11 of the Civil P. C. The requirement that there must have been an earlier decision on the matter directly and substantially in issue in the subsequent suit is recognised as one of the essential conditions for the application of the rule.
10. Umamaheswaram, J. reviewed numerous authorities in Kesava Narayana v. Venkatamma, AIR 1957 Andh Pra 537 where the rule of res judicata was held to be inapplicable by reason of the absence of final decision on the issue arising for determination in the later suit. The learned Judge pointed out that in the case dealt with by him, the dismissal was occasioned by the default of a party under Order 9, Rule 8, Reference was made to the observation of the Privy Council in Mt. Chand Kaur v. Partab Singh, (1909) ILR 16 Cal 98 at p. 101 (PC):
'The dismissal of a suit in terms Section 102 (corresponding to O. 9 R. 8 of Civil P. C. ) was plainly not intended to operate in favour of defendant as res judicata.'
11. The expression 'heard and finally' decided has been understood as implying the need for a decision on merits. It has been laid down that a dismissal of the earlier action for want of jurisdiction or for default of plaintiff's appearance under Order 9, Rule 8, Civil P. C., or non-joinder or misjoinder of parties or that the suit has been badly framed does not constitute the dismissal a bar to the later action. It is likewise held that the failure of an action for want of probate or succession certificate does not amount to a final decision debarring a fresh action. So also a dismissal of a suit for want of notice. It is therefore settled law that where a dismissal of a suit is occasioned by a technical or formal defect or for non-compliance with a condition precedent as to its maintainability, it is not regarded as a matter calling for the application of the bar of res judicata because in such cases the issue sought to be raised on the second suit has never been decided in the former suit.
12. The finality of a judgment is abased on the fact that the cause of action had merged in a decree and therefore, no other action can be brought on the identical cause of action. This is really the core of the doctrine of res judicata. The criterion is whether the question has been decided in effect and in substance. Judged by this standard, it can hardly be said that the dismissal of the earlier set of suits constituted a decision on the liability of the defendant for the payment of the property tax in the relevant years.
13. But Mr. Ranganatham has contended on behalf of the respondent that the instant cases are governed by the well-known maxim that no one shall be twice vexed with one and the same cause of action and that to allow the plaintiff to file a fresh suit on the same cause of action would amount to an abuse of the process of the Court. In support of his contention he relied upon the decision in Amirdin Shahab Din v. Shiv Dev Singh, Air 1947 Lah 102. In that case a suit was brought by the plaintiff against his tenants for a declaration that manure stored on the land could be used only by himself and could not be removed or disposed of by the defendants. An injunction was also sought. The suit proceeded to trial and some witnesses were examined. The plaintiff apparently felt apprehensive about the result because some witnesses gave evidence which was unfavourable to him. At that stage, he brought another suit against the same defendants for the same reliefs on he identical cause of action.
Thereafter, when the earlier suit came up for hearing, the plaintiff and his counsel failed to appear and the suit was dismissed under Rule 8 of Order 9, Civil P. C. In the second suit, a plea was taken that it was barred by reason of the provisions of Order 9, Rule 9, Civil P. C. While rejecting the objection of the defendant based on Order 9, Rule 9, Civil P. C., the Division Bench held that the subsequent suit was barred on the principle that a person should not be subjected to a vexatious repetition of the identical cause of action in a plurality of actions.
14. The circumstances of the case deals with by the Lahore High Court are clearly distinguishable. It is clear that the case proceeded to trial and witnesses had been examined and there was an imminent possibility of the dismissal of the suit on merits, because the evidence produced by he plaintiff was insufficient to sustain his case. It was to circumvent this situation that the second suit was brought. The learned Judges felt that though the dismissal of the first suit was under Rule 8, it was in effect and substance a confession of a dismissal on merits. The decision rested upon a salutary principle that it should not be left to a plaintiff to pursue the earlier proceeding upto the stage of judgment and to avoid an adverse result therein on merits to institute a fresh suit and to fill in the gaps in his case and fight the battle over again. the situation in that case amounted to a withdrawal of the claim not for a formal defect but because of want of merits and an institution of the suit once again a without the leave of the Court having been obtained for that purpose. the position in this case is wholly dissimilar. Adverse result in the earlier litigation had nothing to do with the merits of the case. The earlier suit failed on a ground unrelated to the merits of the case. It follows therefore, that in the subsequent suit the contest on the merits arises for the adjudication for the first time.
15. It is clear that the ground on which the decision of the Lahore High Court was based is inapplicable to the facts of the present case. The true test is whether the action brought in the first instance failed for a reason extraneous to the merits of the case and whether the issue arising for determination in the later suit was heard and decided in the former suit. This test has been laid down in several cases to which reference has been made earlier. I am not impressed by the submission made by the learned Counsel for the respondent that the subsequent suit is maintainable only in cases for which a specific provision is made in the Civil P. C. The counsel contended that only in cases of withdrawal under Order 23, Rule 1 and in case where leave has been granted that a second suit would be maintainable. According to him, the dismissal of the earlier batch of suits was due to a formal defect in he frame of the suit and the position without the leave of the Court.
His contention is based on the application by way of analogy of the provision of Order 23, Rule 1, Civil P. C. I am unable to agree that the dismissal of the earlier suit produces a situation similar to that of a withdrawal of a suit without the leave of the Court. it was also urged by him that it is only in cases like rejection of a plaint under order 7, Rule 13 or in a case covered under Rule 15 of Order 33 that a second suit can be entertained on the same cause of action. he has also drawn may attention, to Order 2, Rule 1. None of these provisions in my opinion have got any bearing on the decision of the instant case. The stand taken by the learned counsel that apart from the specific cases which he mentioned, the Civil P. C. does not contemplate the filing of the second suit on the same cause of action is fallacious. his submission can be accepted only by overlooking the provision of Section 11 which clearly lay down that the bar of a second suit is inapplicable where the issue that is directly and specifically raised in the subsequent suit has not been heard and finally decided.
The contention urged for the respondent is opposed to the clear terms of section 11 and cannot be countenanced, especially in view of the weighty and consistent authority. It has also to be borne in mind that prior adjudication can serve as a barrier to a subsequent suit only when it was made by a Court of competent jurisdiction. It cannot be said that the prior suit brought without the sanction of the municipal council, was a proceeding, in which the court was (sic not?) competent to render an adjudication on the merits of the dispute. In Gulabehand v. State, : 2SCR547 . The Supreme Court pointed out that on the application of the general principles of res judicata, de hors the provisions of S. 11 of the C. P. C., a decision on a writ petition under Art, 226 would operate as res judicata, if the decision had been rendered after full contest. There are several observations made by the Supreme Court in that decision which emphasize the essential condition that there should have been a decision on contest and on the merits before the rule of res judicata comes into play. At page 568 the Supreme Court referred to the earlier decision in Raja Lakshimi Dasi v. Banamali Sen, : 4SCR154 as also the decisions of the Privy council. The passage extracted from : 4SCR154 is to the following effect:--
'...................and in these circumstances it has to be held that the question of title to the four Anna share was necessarily and substantially involved in the land acquisition proceedings and was finally decided by a court having jurisdiction to try it and that decision thus operates as res judicata.................'
The emphasis was on the final decision in the earlier adjudication. At page 570 the principle was formulated that if a writ petition has been dismissed in limine without a speaking order, such dismissal cannot be treated as creating a bar of res judicata. The Supreme Court further pointed out that where a writ petition has been dismissed in limine and an order is pronounced in that behalf the question whether such order would bar a fresh suit depends on whether the order is on the merits. If the order is on the merits, a suit would be barred. it is patent that quite apart form the specific conditions of which statutory recognition has been given in Section 11, even under the general principles, of res judicata, the indispensable requirement for a decision to operate as res judicata is that it must have been rendered on the merits of the issue raised in the later suit. A page 571 the Supreme Court adverted to its earlier decision in Daryao v. State of Uttar Pradesh, : 1SCR574 and approved the principle that a contest between the parties and fair opportunity to both of them to prove their case and a pronouncement by the Court on the contested issue are necessary conditions for applying the rule of res judicata.
16. It is, therefore, clear that both on the basis of express terms of Section 11 and also on the application of the general principles of res judicata, I is recognised as a prerequisite for the application of the rule that the earlier decision must have been rendered on the merits of the issue and after contest and by a court of competent jurisdiction. In the instant case, the earlier decision was not on the merits of the issue which was left untouched by the prior dismissal of the suits. It is, therefore, clear that the decision in he earlier batch of suits cannot operate as res judicata.
17. The revision petitions are, therefore, allowed with costs and the appeals are restored to the file of the lower appellate court for fresh disposal. As the decision in all these revision petitions rests on the same question, a consolidated pleader's fee of Rs. 150/- shall be payable in all these revision petitions. The petitioner will be allowed the costs as incurred and the pleader's fee as stated above.
18. Petitions allowed.