1. Technically, no doubt, the tenant's appeal ought to have been in both suits, and the proper course for the District Judge to have taken would have been to require the appellant to amend his memorandum of appeal so as to make it an appeal in both suits: but the fact that the tenant only appealed in his own suit and did not prefer an appeal in the landlord's suit, did not preclude the District Judge from deciding upon the merits the questions raised in the appeal which was before him. The subject matter of the litigation in the two suits was the same, the evidence was the same and the two suits were tried together. The reasons for which the tenant's suit was dismissed were the reasons for which judgment was given in favour of the landlord in his (the landlord's) suit.
2. We do not think that either under Section 13 of the Civil Procedure Code or on general principles, the doctrine of res judicata has any application to the facts of this case. The doctrine does not apply when, as here, the very object of the appeal, in substance if not in form, is to get rid of the adjudication which is said to render the question which the appellate court is asked to decide res judicata. The tenant's appeal in his suit, if successful, would have the effect of superseding the adjudication in the landlord's suit. See the judgment, of the Full Bench in Jogesh Chander Dutt v. Kali Churan Dutt I.L.R. (1877) 3 C. 30. It is not necessary to consider what might be the exact legal effect of such a supersession. All we have to decide in the present case is whether the appellate Court was precluded from dealing with the appeal by reason of the doctrine of res judicata.
3. It would lead to startling results if we were to hold that an appellate tribunal is precluded from dealing with a question which comes before it on appeal, because an inferior Court, upon the same facts, but in a case other than the case under appeal, had given a decision which had not been appealed against, at the same time as the decision in the case under appeal.
4. We think Abdul Majid v. Jew Narain Matho I.L.R. (1888) 16 C. 233, was rightly decided.
5. Our answer to the question referred to us must be in the negative.