1. These cases being appeals from appellate decrees, it devolves upon this Bench, according to the practice of the Court in references to a Full Bench, to decide the appeals.
2. The questions referred to us relate to the effect to be given to the ex parte decrees for rent mentioned in the reference, and arise by reason of a conflict in the decisions of this Court as to the effect to be given to such decrees. In the present case the ex parte decrees were decrees of a Deputy Collector; but the conflict of cases relates to the effect of decrees of Civil Courts generally, and with this wider question we think it proper to deal.
3. In Birchunder Manickya v. Hurrish Chunder Dass I.L.R. 3 Cal. 383, the plaintiff sued the defendant for rents for the year 1279 at the same rate as had been decreed to the plaintiff for the year 1278 in a suit brought against the defendant with respect to the same property. The plaintiff relied upon an ex parte decree obtained by him in that suit as showing the amount of rent due to him. The case came in 1874 before this Court in appeal from the decision of the District Judge of Tipperah, who had held that, inasmuch as no steps had been ever taken to execute the former decree, and it had become barred by limitation, it became inoperative and could not be used in evidence.
4. The case was referred by the Bench before which it came to a Full Bench, to determine the question whether the decree could be used in evidence.
5. The Full Bench held that the decree was admissible in evidence, the question of its value to be determined by the lower Courts. The case was remanded for a re-hearing. It went back to the District Judge, who found that, having been obtained ex partte, the decree was of no value, and ought to be disregarded. He then sent back the case to the Munsif to try the question of amount without reference to the former decree, which was accordingly done.
6. The case in 1878 again came on second appeal to this Court; it was heard by a single Judge; and from his decision an appeal was preferred under Clause 15 of the Letters Patent.
7. It was held, on this appeal, that the decree was binding on the defendants. The learned Chief Justice said [in Birchunder Manickya v. Hurrish Chunder Dass I.L.R. 3 Cal. 383, at p. 388]:
The Judge pronounced the decree to be of no value as evidence, merely because it had not been contested by the defendants in this we consider he was quite wrong; a decree obtained exparte is, in the absence of fraud or irregularity, as binding, for all purposes, as a decree in a contested suit. If it were not so, a defendant in a rent suit might always, by not appearing and allowing judgment to pass against him without resistance, prevent the plaintiff from, ever obtaining a definite judgment as to what is the proper amount of rent due from him to his landlord.
8. According to this decision, therefore, an ex-parte decree in a rent suit is conclusive as to the rate of rent alleged in the proceedings in the suit, the question as to the rate becoming by virtue of the decree res judicata.
9. According to this decision, also, the fact that no execution had ever been taken out by the decree-holder upon his ex-parte decree, does not prevent the decree having, against the defendant, the conclusive effect attributed to it.
10. In Goya Pershad Aubustee v. Tarinee Kant Lahoree 23 W.R. 149 before Phear and Morris, JJ., which was a rent suit, the question arose as to the effect to be given to an ex parte decree for rent in a former suit between the plaintiff' and the predecessor of the defendant. The question, as raised, was as to the effect to be given to such a decree as evidence. The learned Judges say:
It seems to us, however, that the Munsif was right in the view which he took of the effect of this decree considered as evidence between the parties, namely, that it is only evidence that Rs. 43 odd was, at the time when the decree was passed, due in respect of rent from the defendants to the plaintiff. The allegations made in the claim, so far as we can learn, were not converted into issues: the suit was tried ex parte by reason of the non-appearance of the defendants; and no issues of fact seem to have been raised beyond the general issue involved in the claim, whether or not the Rs. 43 odd was due from the defendants to the plaintiff in respect of the rent claimed.
11. In the latter case, that of Goya Pershad Aubustee v. Tarinee Kant Lahoree 23 W.R. 149 the decree was considered only with reference to its value as evidence, and the question whether, so far as it was evidence, it operated as conclusive proof under Section 40, was not discussed. It is, however, a decision upon the question before us in this reference, inasmuch as it decided that the ex-parte decree then under consideration was relevant, not to the question raised as to the rate of rent, but only upon the question whether or not the Rs. 43 odd was, at the time the decree was passed, due in respect of rent from the defendant to the plaintiff.
12. Upon this question, therefore, the decisions in Goya Pershad Aubustee v. Tarinee Kant Lahoree 23 W.R. 149 and Birchunder Manickya v. Hurrish Chunder Dass I.L.R. 3 Cal. 383 are in direct conflict.
13. A later decision in this Court, not reported, and not mentioned in the reference to this Full Bench, was referred to in argument before us. It is the decision in the case of Puncharam Mundul v. Krishna Pria Dasi (appeal from Appellate decree, No. 1271 of 1887, decided 22nd March 1888).
14. In that case the learned Judges arrived at the same conclusion as that accepted in the case of Birchunder Manickya v. Hurrish Cunder Dass I.L.R. 3 Cal. 383. They say:
When an undefended suit goes to trial, the plaintiff is put in the same position that he would have been if the defendant had appeared and simply said 'I deny all your allegations,' in which case the plaintiff would have to prove everything which would be necessary for him to prove in order to make out his case, and therefore every material allegation in his plaint may be said to be denied because ho has to prove them. When therefore this matter came before the Judge under these circumstances, the plaintiff had to prove that the defendant was his tenant of the tenure in question, and that the rent which the defendant had to pay on account of this tenure was at the rate of Rs. 7 and odd annas a year, and he also had to prove the amount of the rent in arrear, so that, all these allegations having to be proved, they are within the meaning of Section 18 of the Civil Procedure Code impliedly denied by the defendant.
15. It was argued before us that the statement in the plaint of an alleged rate of rent, in such a case, would not be an' allegation so material that, in the absence of proof of it, the plaintiff could not obtain a decree, even although he were to show conclusively that the amount of rent claimed in the suit was actually due, on the footing of a different rate of rent from that mentioned in the plaint being the true rate.
16. We think this argument well founded. We think that, if at the hearing of such a suit, the plaintiff were to prove that the amount claimed by him as rent was actually due, although he did not establish the rate named by him in his plaint, he might nevertheless be entitled to a decree. That such a case might possibly arise is obvious. If it might, it follows that the statement of the rate of rent in the plaint is not necessarily an allegation so material that the determination of it in the affirmative is involved in the act of the Court in making a decree.
17. It follows from this that, in our opinion, the mere statement of an alleged rate of rent in the plaint in a rent suit in which an ex-parte decree is made, is not a statement as to which it must be held that an issue within the meaning of Section 13 of the Code of Civil Procedure was raised between the parties so that the defendant is concluded upon it by such decree.
18. We are of opinion, also, that neither a recital in the decree of the rate alleged by the plaintiff, nor a declaration in it as to the rate of rent which the Court considers to have been proved, would operate in such a case so as to make that matter res judicata; assuming, of course, that no such declaration were asked for in the plaint as part of the substantive relief claimed, the defendant having a proper opportunity of meeting the case.
19. On the above assumption our answer, therefore, to the first throe questions is in the negative.
20. As to the fourth question, the matter was not so fully argued before us as to make it desirable that we should come to any decision upon it.
21. The result is that we allow the appeals, set aside the decrees of the Lower Appellate Courts in both suits, and remand the cases for a decision on the merits. The respondent to pay the costs of the appeal in each case.