1. The defendant in a suit for recovery of arrears of mulgeni rent brought by the respondent seeks to revise the decree passed against him by the learned District Munsiff of Udipi. The only question in dispute is as to the rate of rent. The plaintiff claimed at Rs. 10-2-0 per year. The defendant contended that the proper rate of rent was Rs. 7-2-0. The plaintiff also alleged that the rate of rent was concluded by res judicata. by reason of the judgment in a prior suit S.C.S. No. 357 of 1936. The learned District Munsiff found on the merits that the rent fixed was only Rs. 7-2-0 per year, but held that the decree in S.C.S. No. 357 of 1936 operated as res judicata. The only evidence relating to the prior suit is that furnished by the judgment and the decree. The copy of the judgment filed as Ex. P-2 does not appear to be complete. It simply states that the suit is for a particular amount and that there should be a decree in favour of the plaintiff for the sum claimed. The decree does not furnish any more information. No doubt from a calculation it can be deduced that rent must have been claimed at Rs. 10-2-0 per year. From the decree it is clear that the' defendant was ex parte.
2. There is very little of authority in this Court on the question whether in such circumstances the prior decision would operate as res judicata on the question of the rate of rent. The only decision directly in point appears to be that of Madhavan Nair, J., in Rajah of Vizianagaram v. Appalaraju : AIR1929Mad673 . There, the learned Judge, after referring to several decisions of the Calcutta High Court and an earlier decision of the Madras High Court, laid down the effect of the decisions in the following words:
It is not correct to state as a general proposition of law that an exparte decree for arrears of rent operates or does not operate as resjudicata regarding the rate of rent in a subsequent suit. The question whether such a decree is resjudicata or not must be determined with reference to the special facts of each case.
3. In the case before him it was found that no issue on the question of the rate had been raised in the prior suit, nor was there any decision with regard to such rate in the judgment of the Court. In such circumstances the learned Judge held that the ex parte decree in the prior suit would not operate as res judicata as regards the rate of rent payable in a suit for a subsequent period. It is clear that according to this decision the view taken by the lower Court cannot be sustained. The learned District Munsiff has referred to two other cases of this Court in Govindas Kishandas v. P. Manikyanarayanim : AIR1925Mad378 which by the way, it must be mentioned was referred to by Madhavan Nair, J., and in Kaipath Moidin Kutti v. Karuvarakkandi Parambil Veshala Puthia alias Ambi 1934 M.W.N. 1322. But in both these decisions the question which now falls for decision in this petition did not directly arise. In both those cases the matter in dispute was not the rate of rent but the nature of the relationship between the plaintiff and the defendant. In one case the dispute was whether the defendant was liable to pay any jodi at all. In the other case the dispute was whether the relationship of landlord and tenant existed between the plaintiff and the defendant.
4. Mr. Srinivasa Rao points out that the learned Judge in Rajah of Vizianagaram v. Appalaraju : AIR1929Mad673 overlooked the rule of constructive res judicata which is also a part of the doctrine of res judicata. Even if in the prior suit the matter was not made the subject of an issue, nevertheless, as the defendant could have raised the defence and an issue could have been raised if he had raised such a defence, the omission to do so would entail the application of the rule of res judicata. I cannot agree that the learned Judge was not aware of this well-known aspect of the rule of res judicata Apparently the special considerations which were considered to be applicable to the case of suits more or less summary in their nature brought by landlords against tenants outweighed the rule of constructive res judicata. In any event, I am not inclined to dissent from the considered decision of the learned Judge, and following it I set aside the decree of the District Munsiff and pass a decree in favour of the respondent at Rs. 7-2-0 which is the rate found by him.