1. The question in the present case is whether the decision upon a matter which was directly and substantially in issue between the same parties in a suit which though tried by the District Munsif as an original suit was yet one of a small cause nature and, therefore, in which no second appeal lay is binding in respect of the same matter in a subsequent suit in which a second appeal lay.
2. This point first arose for decision in Bholabhai v. Adesang I.L.R (1884) B. 75 and after full consideration West and Nanabhai Haridas JJ. answered it in the negative. This case was followed by Sargent C.J. and Telang J. in Govindbin Lakshmanshet Anjorlekar v. Dhondbaravbin Ganbarav Tambye I.L.R(1890) B. 104. In the meantime the same question arose in this Court in S.A. No. 1200 of 1887 but the learned Judges disagreed, Wilkinson, J., holding that the prior decision operated as res judicata and Kernan J. holding otherwise. In Vythilinga Padayachi v. Vythilinga Mudaly I.L.R(1891) M. 14 which was the decision of a single Judge the principle of the Bombay decisions was considered right and it was held that the decision of a Subordinate Judge in a suit for an amount less than Rs. 5000 in which an appeal on a point of law only was allowed was not res judicata in a subsequent suit for an amount over Es. 5000 in which an appeal lay not only on points of law but on the facts also. In Namasivaya Gurukkal v. Kadir Ammal I.L.R(1893) M. 168, Muttusami Aiyar and Davies JJ., relying on Govindbin Lakshmanshet v. Dhondbaran I.L.R(1890) 15 Bom. 104 and Vythilinga Padayachi v. Vythilinga Mudaly I.L.R(1891) M. 111 rejected the contention that a former decision in a suit of small cause nature operated as res judicata in a subsequent suit in which there was a second appeal. Again in Srirangachari v. Ramasami Ayyangar I.L.R(1894) M. 189, Collins C.J. and Davies, J. approved of the principle of the above cases. But in Subbammal v. Huddleston I.L.R(1894) M. 273, Collins C.J. and Shephard J. dissented from the reasoning adopted in Vythilinga Padayachi v. Vythilinga Mudaly I.L.R(1891) M. 111, in regard to the question under consideration but made no reference to Namasivaya Gurukhal v. Kadirammal I.L.R(1893) M. 168, In Rai Charan Ghose v. Kumud Mohun Dutt Chowdhry I.L.R(1908) C. 571 Maclean C.J. and Banerjee J. held that the question whether a decision is res judicata or not should be answered without reference to the character of the appeals allowed in the two suits respectively and that if the court which gave the first decision was competent to try the subsequent suit in regard to its subject matter and pecuniary value that court should be held to be a court of competent jurisdiction within Section 13, Civil Procedure Code. This case was followed in Bhugwanbutti Chowdrani v. Forbes I.L.R(1900) C. 78. In Ahmed v. Moidin I.L.R(1901) M. 444 Shephard and Bhashyam Iyengar JJ. following these Calcutta cases and Subbammal v. Huddleston I.L.R(1894) M. 273 dissented from the Bombay decisions and those Madras cases which agreed with them. In doing so they state that Subbammal v. Huddleston I.L.R(1894) M. 273, was not cited and was apparently overlooked in Srirangachariar v. Ramasami Ayyangar I.L.R(1894) M. 189. It must be mentioned however that the latter case though reported in a later volume was in point of fact decided earlier than the former case by a few days and so it was impossible that the former case could have been cited or noticed in the latter case. Ahmed v. Moidin I.L.R(1901) M. 444, was cited with approval by Boddam and Bhashyam Iyengar JJ., in Raja Simhadri Appa Row v. Ramachandrudu (1902) 13 M.L.J. 23.
3. In the face of so many authorities dealing more or less fully with the short question before us, it is obvious that no new important argument could be brought forward and none in fact has been brought forward. We have to choose between the one or the other of the two views presented to us and it must be admitted the question of construction of Section 13 with reference to the present point is one of difficulty. Those learned Judges who hold that in cases like the present the decision in the earlier suit operates as res judicata take the view that the language of the section is satisfied when the Court deciding the first suit was competent to try the subsequent suit irrespective of the question whether the earlier decision was or was not subject to the same appeal as the decision in the subsequent suit would be and that a different interpretation would be straining the language of the legislature, Those learned Judges on the other hand who take the. opposite view consider that the words of 'jurisdiction competent' in the section admit of the provisions of law relating to appealability being considered in giving effect to the principle of estoppel which the section is intended to enforce and that, having regard to the difference in the grades of the Courts administering justice in this country and the qualifications of Judges which differ greatly it is better not to tie down as far as possible Courts of higher jurisdiction by the decisions of inferior Courts. Sir Barnes Peacock in the decision in Mussamut Edun v. Mussan Bechun (1867) 8 W.R. 175, which is referred to by the Judicial Committee in Misir Raghobardial v. Sheo Baksh Singh I.L.R(1882) C. 439, as the leading case and the Judicial Committee itself in that case lay much stress upon the said difference in the grades of Courts and the qualifications of Judges in connection with the question of estoppel by judgment and the Committee further observe that 'although it may be desirable to put an end to litigation the inefficiency of many of the Indian Courts makes it advisable not to be too stringent in preventing a litigant from proving the truth of his case.'
4. Overruling Rangasami Pillai v. Krishna Pillai I.L.R(1894) M. 273 and Amad v. Moidin I.L.R(1901) M. 244 and Raja Simhadri Appa Rau v. Ramachandrudu (1902) 13 M.L.J. 23 in so far as the last case relies on Ahmed v. Moidin I.L.R(1901) M. 244 we hold here that the decision in the former suit does not operate as res judicata and the fact that the former suit was one of a small cause nature prevents the decision therein from operating as res judicata in the present suit.