(1) This petition by a plaintiff is to revise the finding of the learned Subordinate Judge of Cuddalore on the issue whether the finding in an earlier litigation in O.S. No. 56 of 1958 operated as res judicata against the plaintiff. The Subordinate Judge found that the earlier finding so operated.
(2) The sons of the plaintiff instituted the earlier suit impugning a sale executed by their father, who was the first defendant there, in favour of the 8th defendant on the ground that it conveyed joint family properties and that the sale was not supported by necessity or benefit and therefore was not binding on them. The first issue which the court had to decide in the earlier litigation was whether the suit properties were joint family properties, as contended by the plaintiffs, or whether they were separate properties of the first defendant, as contended by defendants 2 to 10. As I said, that issue was decided against the plaintiff's. In view of this, the court in the earlier suit stated:
'As a result of my finding on issue 1, issues 2 to 9 do not arise for consideration. However, I proceed to discuss these issues also and give my findings.'
These issues covered the validity of the sale in favour of the 8th defendant. The court on these issues upheld the validity of the sale, apart from the question of consideration for the sale. The present suit instituted by the father, who was the first defendant in the earlier litigation, is in effect for a declaration that the sale is invalid on certain grounds, which were more or less similar to those covered by issues 2 to 9 in O.S. 56 of 1958, and for recovery of possession. There was an alternative claim for return of the balance of purchase price with interest thereon. The defendants contended that the finding in the earlier suit relating to the validity of the sale operated as res judicata. In view of this, issue 6 was settled to the effect, whether the suit was barred by res judicata by reason of the decision in O.S. 56 of 1958 on the file of the court of the Subordinate Judge, Cuddalore. As already mentioned, the Subordinate Judge has answered that issue against the plaintiffs.
(3) What is contended for the petitioner is that in view of the finding of the court in the earlier litigation, on the first issue, the other issues did not arise for consideration and that in fact the court said so, but, nevertheless, it proceeded to consider those issues and record its findings. In the circumstances, the findings in the earlier suit which were quite unnecessary for the disposal of the suit, according to the argument, cannot operate as res judicata. I think the contention is well founded. For a finding in an earlier suit to operate as res judicata in a subsequent suit, it must be necessary for disposal of the earlier litigation, and in that sense the point was substantially in issue between the parties and it must have been heard and finally decided. In the earlier litigation once the court found that the character of the property conveyed to the 8th defendant was not coparcenary, the suit should automatically fail and no further issue arose for decision. It was for the sake of fullness in the earlier litigation the court recorded findings on the other issues. In my view, such findings on issues which were not necessary, or which did not arise, in view of a finding on a vital issue which would by itself dispose of the suit, will not operate as res judicata in a subsequent suit between the same parties where identical issues which were not necessary or required to be decided in the earlier suit, arise for consideration. This view is supported by Raja Gopala Venkatanarasimharayinim v. Veeraswami, : (1935)68MLJ625 . In that case, Madhavan Nair J. held:
'If a decision on a point or issue in an earlier suit between the same parties are unnecessary for the disposal of the previous suit it cannot be considered to be res judicata in a later suit when the point involved in that finding arises for decision'
With respect, I am of the same view.
(4) It is, however, contended for the respondents that no revision lies under Section 115 C.P.C. against a finding on an issue in a suit. It is also said that if the petitioner felt aggrieved by the decree in his suit, he would have a right of appeal, and that on this ground too, he could not invoke Section 15. Neither of these grounds, as I think, is correct. The word 'case' in Section 115 which is not defined in the Code is of wide import and may well cover a finding on an issue. Often questions relating to Court fee and involving jurisdiction are tried as preliminary issues and revision petitions are entertained from orders passed on such questions. An issue relating to res judicata involves a question of jurisdiction. Where the court on such a question takes a view against the plaintiff and bars a particular question which arises in the suit being raised. I do not see why that will not come within the ambit of the word 'case' in Section 115. As regards the other objection of the respondents, it is obvious that no appeal would lie against a finding on res judicata which by itself did not dispose of the suit.
(5) The petition is allowed, but with no costs.
(6) Petition allowed.