1. This is a civil revision which has been referred to a Bench.
2. The plaintiff brought a suit as successor of the original mortgagor to redeem the mortgage under Section 12 of the Agriculturists' Belief Act. In defence to the suit the bar of Section 11 C. P. C. was raised.
3. It appears that there was a previous litigation inter partes relating to the very same plots in respect of which another mortgage had been made. The instant suit was in regard to a subsequent mortgage. When the prior suit was heard, the trial court held that the mortgage set up in the prior suit was not proved. Upon that finding the prior suit was dismissed. The plaintiff of that suit preferred an appeal and the appellate court recorded two findings in the appellate judgment. The first issue was as to whether plaintiff of that suit was the successor of the original mortgagor. This issue was answered against the plaintiff.
The second question that was considered by the appellate court in that suit was whether the mortgage had been proved. The court came to the conclusion, agreeing with the trial court, that the mortgage had not been established. That finding of the appellate court in the previous suit whereby the appellate court had held that the plaintiff of that suit was not the successor in interest of the mortgagor, who had created the mortgage in that suit, operated as res judicata in the instant suit.
It may be stated that in the instant suit also the plaintiff was claiming to be the successor in interest of the original mortgagor the original mortgagor being the same both in this suit and in the previous suit. The trial court in the instant suitdecided that the suit was barred by res judicata because of the decision on the question of the plaintiffs title to redeem the mortgaged property in the earlier suit.
The court below, however, has come to the conclusion that the primary matter, which called for consideration in the earlier suit was whether the mortgage was established and that the question whether the plaintiff of that suit was entitled to institute the suit, i.e. whether the plaintiff had a locus standi was not directly in issue in the previous suit and the decision of that question was not essential for the disposal of that case, and has held that the finding on locus standi in the earlier suit cannot therefore operate as res judicata in the instant suit.
4. We are, therefore, to consider whether the decision of the issue in regard to the plaintiff's right to sue in the previous suit was essential for the disposal of that suit or not. Learned counsel for the applicant has urged that it was essential and that that question was directly and substantially in issue and that question whether there was or was not a valid mortgage, was a question which would only arise if the plaintiff in that suit established his locus standi as successor in interest of the original mortgagor.
On the other hand, learned counsel for the respondents has urged that the trial court had disposed of the suit on the finding that the mortgage was not established and that in the plaintiffs appeal the Court below was not called upon to decide whether the plaintiff had a locus standi to sue or not, if the court below was taking the same view in regard to the establishment of the mortgage as the trial court had taken; and the contention is that the decision by the appellate court in regard to the right of the plaintiff in that suit to bring a suit was a decision merely incidental and that finding in regard to the right of the plaintiff of that suit to file a suit could not operate as res judicata in this instant case.
We have considered the question raised before us carefully. In every suit the first essential is that the plaintiff should establish his locus standi, i. e., his right to bring a suit. If the plaintiff fails to do so, the suit must be dismissed irrespective of the merits or demerits of the other allegations in his plaint. Therefore, in the sequence of things the first step for the plaintiff is to establish his locus standi. That is why in the very first paragraph of every plaint the locus standi of the plaintiff is alleged.
Once the plaintiff's right to sue is established, then the other allegations which he makes are to be established by him, and if he succeeds in establishing his allegations, then his suit is decreed. But if his locus standi is not made out, then the suit fails and no other question really arises. We have no doubt that this is the position ordinarily speaking, but learned counsel for the respondents has urged that the situation here is somewhat different and that it is the finding given in the appellate court's judgment in the previous suit which is being sought to be used as res judicata, even though the trial court gave no finding on the issue of plaintiff's right to sue. He contends that the appellate court was not called upon to record any other finding than the finding in regard to whether the mortgage was duly established, because the trial court had only recorded that finding and had disposed of the suit on that basis.
5. We may here point out that in the grounds of appeal in the previous suit the plaintiff, who had lost the suit, himself invited the court to decidethe other issues raised therein. Secondly, it seems to us that in a suit on a mortgage it could not be said that, if a decision was given in regard to whether the plaintiff was the successor-in-interest of the mortgagor, that that finding was incidental and that the first question in a mortgage suit merely is whether the mortgage is established. No doubt, a plaintiff in a mortgage suit for redemption asserts that there is a mortgage and that he is either the mortgagor or the successor of the mortgagor, but at the same time as soon as he brings a suit, he must first establish that he is the mortgagor or the successor and this he is called upon to do on the assumption that the mortgage had been established. Prima facie he alleges that there is a valid mortgage in existence and, in the first instance, that prima facie allegation in the plaint may be accepted and then the question is as to whether he has a right to sue.
6. In a case where the plaintiff is seeking as successor of the mortgagor to redeem the mortgage, it seems very difficult to say that the question of his locus standi is of secondary importance and the question whether the mortgage has been duly established is of the first importance. The two questions in a certain way are inter-connected and interlinked and, in the present case, we cannot say that in the previous suit when the appellate court decided to give a finding both on the questions whether the plaintiff in that suit was successor in interest of the mortgagor and entitled to bring a mortgage suit and whether the mortgage was established; the court was taking upon itself the decision of an issue so far as the first point was concerned, which did not call for decision.
No doubt, by the previous appellate judgment there was a dismissal of the appeal and, therefore, the decree of the first court was not reversed. It is true that the first court's decree cannot be said to have been completely merged in the second court's decree except for purposes of calculation of limitation, as has been pointed out by their Lordships of the Supreme Court in the case of State of U.P. v. Mohammad Nooh, AIR 1958 SC 86, but none the less the finding which could operate as res judicata is not the finding of the trial court but the finding of the court of appeal, and so the appellate judgment must perforce be looked at. In these circumstances, it is necessary for us to see whether the decision of the court of appeal in the first suit that the plaintiff had no locus standi did not, in point of fact, effectively dispose of the suit, so that the second question, namely, whether the mortgage was fully established became, in a sense, ancillary.
7. We think that the court of appeal in the previous case was entitled to record a finding on the question of the locus standi of the plaintiff in that suit despite the fact that the trial court did not do so. Its powers are no less than the powers of the trial court, and, inasmuch as it has recorded that finding, we think that that finding cannot be ignored because the suit really could be dismissed on that finding alone; and the second finding in regard to whether the mortgage was established was, in a sense, not absolutely essential for decision for the disposal of the suit.
We do not think that the appellate court is debarred from considering all the points that arise in the case, and if it has done so, then its judgment must be looked at to see which finding is of the first importance from the point of view of sequence. If the finding is on the first point in sequence and is capable of finally disposing of the suit, that must be considered to be a finding which in a subsequent litigation would be liable to operate as res judicata.
8. We are fortified in what we are saying by the decision reported in Shib Charan Lai v. Raghu Nath, ILR 17 All 174 at page 195, where it was pointed out that until the legal representative, who was suing, had established his title to sue upon the contract, the defendant could not be put to proof of his plea that he was a minor and that the contract wag not binding upon him. We may also point out that in the case of Shankar Lal Patwari v. Hira Lal Murarka, AIR 1950 PC 80, where a court had held that a suit was not maintainable by reason of failure to comply with Section 80 C. P. C., the findings given on merits were treated as obiter and it was held that these findings did not support the plea of res judicata either in favour of or against the party. We may point out that sec. 80 says that no suit can be instituted against the Government until the expiry of two months next after notice in writing had been delivered and, in a case where there is no proof that such a notice had been delivered, the suit would fail in the absence of proof irrespective of the fact whether the plaintiff had or had not a good case. The proof of notice in the sequence of allegations required to be proved by the plaintiff would come first. In the same way in the sequence the allegation that the plaintiff had the representative character which, he was alleging as mortgagor would call for establishment and proof in the first instance, before the proof of the mortgage according to law.
9. After having considered the matter very carefully we are of the view that we must set aside the order of the learned District Judge dated the 13th December 1949 and restore that of the trial court. We order accordingly.
10. Costs will be on the parties.