1. The question raised in this appeal before the Subordinate Judge was whether the decree in Original Suit No. 235 of 1914 as well as those in the appeal and second appeal was binding upon the minor plaintiff in this case. If it were so binding, it is not denied that the question based, on his legitimacy or illegitimacy will be res judicata between him and the defendants,
2. The Subordinate Judge, however, has accepted the plaintiff's case that in the conduct of Original Suit No. 235 of 1914 his guardian who was his mother was guilty of original negligence and therefore, he held that the decree in that case and its appeal were not binding upon the minor plaintiff.
3. The first point taken by Mr. Ananthakrishna Ayyar before us for the appellants (defendants Nos. 2 and 3) is that there is really no evidence to support this finding of negligence. We are unable to agree with that contention. Even though there might be no oral evidence in support of it, the circumstances in which the previous litigation was carried on by the mother as appearing from the prior judgments are a sufficient foundation for the Subordinate Judge's view that the lady was guilty of gross negligence in the conduct of the case. Circumstantial evidence is as good as any other kind of evidence in such matters and perhaps better evidence than oral evidence.
4. The finding on the question of negligence is a finding of fact, and, as we are not prepared to hold that there is no evidence to support it as contended for by the appellants, we must accept that finding. The result of it then is, that the previous decrees will not be binding on the minor and the first issue raised in the case was rightly found in his favour and the case has to be tried on other issues.
5. The Subordinate Judge, how ever, after finding that gross negligence was established, says in the last paragraph of his judgment that particulars as regards negligence were not stated with sufficient fullness and clearness as they should have been and he has, therefore, directed the plaint to be amended by giving full particulars. This is like putting the cart before the horse. After having found that gross negligence has been established there is no necessity what ever for amending the plaint by giving fuller particulars. As a matter of fact, we find, on examining the plaint ourselves, that particulars are fairly satisfactorily stated. If the defendants considered that further particulars of the fraud and negligence should have been given it was their duty to have applied to the Court for such amplification. They did not do so, but went on to trial on the plaint as it was. We, therefore, think that the order of the Subordinate Judge directing amendment of the plaint is inconsistent with his previous judgment and it should be set aside.
6. There is no necessity to amend the plaint at this stage. His order, however that the case should go back to. The Court of first in- stance to be tried on other issues which have not yet been tried will stands As regards his order as to costs about which the plaintiff's next friend has filed a memorandum of objections on his behalf in this Court, we are of opinion that that order cannot be supported.
7. Apparently, the next friend is made to bear the costs of the trial in the First Court as well as in the Appellate Court up to, the date of the Subordinate Judge's order, because the Subordinate Judge was of opinion that full particulars we not given by him, but as we are differing from him on that point, it is unnecessary to say more than that the proper order as to costs in the First Court should abide and follow the result of the suit but that the appellants should get their costs in the lower Appellate Court.
8. We accordingly substitute that order for the Subordinate Judge's order as to costs. With the modification that no amendment of the plaint need be insisted upon, we dismiss the appeal and direct the appellants to pay the costs of the respondent in this Court. There will be no costs on the memorandum of objections.