1. I have had the advantage of reading Mr. Justice Banerjee's judgment in this case, and I concur in the conclusion at which he arrives. He has gone so fully into the matter that I purpose to state very shortly the grounds upon which I consider this rule ought to be discharged. The only question we have to decide is, whether the plea of res judicata ought to prevail. Admittedly the present plaintiff, some short time ago, brought a suit against the present defendant claiming identically the same relief as is sought by the present suit, that is to say, damages against the defendant for not removing certain offensive matter from certain property belonging to the plaintiff. This suit failed upon two grounds: (1) want of notice under Section 363 of the Bengal Municipal Act: (2) that upon the merits the defendants were not liable. The merits admittedly were gone into in that suit, and the suit was decided against the present plaintiff. The present suit is for the non-removal of the offensive matter over a subsequent period; the issue, however, in dispute is really identical.
2. The question we now have to decide is whether, having 902] regard to Section 13 of the Code of Civil Procedure, and explanation II to that section, the matter directly and substantially in issue in the present suit was heard and finally decided by a Court of competent jurisdiction in a former suit between the same parties. I think it was. The only ground alleged for the present suit not being barred by the plea of res judicata is that, inasmuch as the Court, in the previous suit, decided that the suit must fail for want of previous notice (I refrain from expressing any opinion as to whether, having regard to the language of Section 363 of Bengal Act III of 1884, that view is sound), it became unnecessary to go into the other issues, and therefore that the merits cannot be regarded as so gone into in the previous suit as to entitle the defendants to say that the matter of the present suit was 'directly and substantially ' in issue and beard and finally decided in the former suit. But the answer to that argument appears tome to be that, in point of fact, the question, with the knowledge and assent of both the litigating parties, was gone into, was directly and substantially put in issue, and was heard and finally decided. Why was the question the less directly and substantially in issue, and not heard or finally decided, because the Court also decided another point which, if right, would have decided the suit, but which if wrong would not have done so. The decision upon the merits formed an additional ground for the dismissal of the suit; and both sides invited that decision. The plaintiff might have invited the decision of the Court upon the question of notice alone, and if that were given against him have declined to go into the merits. But he did not adopt that course, he allowed the merits, that is, the question of the defendant's liability, to be gone into, and took his chance of a decision in his favour. Can he turn round now and say they were not gone into or finally adjudicated upon? The question of the liability of the defendant to remove the offensive matter from the plaintiff's property was clearly matter 'directly and substantially' in issue in the former suit, and it is the sole question now in issue in the present suit. In the previous suit the plaintiff invited a decision upon the question of such liability, and the Court gave its decision upon the matter. The petitioner places great reliance upon the case of Shib Charan Lal v. Raghunath I.L.R. 17 All. 174. For the reasons given by Mr. Justice Banerjee, I think that case is distinguishable; the facts in the present case are very different. The rule must be discharged with costs.
3. The petitioner before us, who was the plaintiff in the Court below, asks us under Section 25 of the Provincial Small Cause Courts Act to set aside the decree of the lower Court, dismissing his suit for damages against the opposite party, the Chairman of the Municipal Commissioners of Utterparah.
4. The suit was brought by the plaintiff on the allegation that the defendant bad wrongfully refused to remove offensive matter from certain property belonging to him, and that he bad consequently been obliged to incur expense for removing the same. The defence was that the defendant was not liable to remove offensive matter from the plaintiff's property, and that the question of the defendant's liability was res judicata by reason of, its having been decided against the plaintiff in a former suit brought by the plaintiff in respect of similar damages for a previous period. The Court below has given effect to the plea of res judicata and dismissed the suit, without going into the merits.
5. The learned Vakil for the petitioner contends that this decision is wrong, and that the judgment in the former suit is no bar to the present, as the decision in that suit upon the issue as to the defendant's liability was not necessary for the disposal of the case, the suit having failed for want of previous notice as required by Section 363 of the Bengal Municipal Act; and in support of his contention the case of Shib Charan Lal v. Raghunath I.L.R. 17 All. 174 is relied upon.
6. I am of opinion that this contention is not correct. It is true that in the former suit the Court decided, not only the issue as to the defendant's liability, but also that as to notice, against the plaintiff; and it is true also that in the absence of proof of notice, a suit against the Municipal Commissioners for anything done under Bengal Act III of 1884 must he dismissed under Section 363 of the Act. But in the first place, it is doubtful whether the former suit came under Section 363 when the suit was not for 'anything done ' under the Municipal Act, but for something left undone which, according to the plaintiff's contention, the Municipality was bound to do. And in the second place, even if that suit came under Section 363, it does not follow that, because the suit failed for want of notice, the adjudication of the Court upon the question of the defendant's liability is no bar to its trial in a fresh suit when the question was raised, as it ought to have been, by the parties in the former suit, and the decision thereon formed an additional ground for the dismissal of the suit.
7. Section 13 of the Code of Civil Procedure enacts that 'no Court shall try, any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties '---I quote only so much of the section as bears upon the question now before us---'in a Court of jurisdiction competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court; ' and explanation II of the section says that 'any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.' Now the question of the liability of the defendant to remove filth from the plaintiff's property was clearly matter 'directly and substantially in issue' in the former suit, as it is in this, in every sense of the expression; and the question is, was it any the less so in the former suit because that suit failed by reason of the decision of the Courts, upon some other matter as well
8. When more questions than one arise in a suit, according to the circumstances of the case, depending upon the nature of the questions and of the decision arrived at, it may be either necessary to decide them all, or sufficient to decide only some of them, for the disposal of the suit.
9. The first case presents no difficulty so far as the point raised before us is concerned; but the case we have to consider is not one of that description. In cases of the second class, the Court may either decide only the questions that are found necessary to decide (and in that event no difficulty will arise) or it may decide all the questions raised.
10. In this latter class of cases again, the Court may either embody the result of its decision upon every question in the decree in the form of a declaration or otherwise (and in that event too no difficulty can arise) or it may not do so.
11. Cases of this last mentioned description again sub-divide into two classes, in one of which the decree is sup __(sic)_/e decision upon each of the questions determined (and the case we have to consider is one of that description), and in the other it is in spite of the decision upon some of those questions, as, for instance, where a suit fails upon the question of limitation or of some preliminary notice, but the question of title is found for the plaintiff.
12. The case we are dealing with, not being of this latter description, it is not necessary to consider whether the full Bench decision in Niamut Khan v. Phadu Buldia I.L.R. 6 Cal. 319 is good law, or whether it has been in effect overruled by the Privy Council in Run Bahadoor Singh v. Lucho Koer I. L. R. 11 Cal. 301: L. R. 12 I. A. 23---a question which may be taken as settled by the cases of Nando Lall Bhuttacharjee v. Bidhu Mookhy Debee I.L.R. 13 Cal. 17 and Thakur Magundeo v. Thakur Mahadeo Singh I.L.R. 18 Cal. 647.
13. The judgment in the former suit, which is here made the basis of the plea of res judicata, determines each of the two questions raised, namely the question of notice and that of the defendant's liability against the plaintiff ; and the question of the defendant's liability was raised as directly and substantially in the former suit as it is in this. So that it cannot be said, either that the decision in the former suit upon the question of the defendant's liability was superseded by the decree by reason of the decree being in spite of that decision, or that the question was not a direct and substantial question in the case. If the question of notice had been found for the plaintiff, the question of the defendant's liability would clearly have been a direct and. substantial question in the case. Can it then be said that it ceased to be so by reason of the decision upon the question of notice which came to be considered prior to the other question as being prior in point of logical order? Having regard to the language of explanation II of Section 13, quoted above, which makes any matter which might or ought to have been made ground of attack or defence come within the description of matter directly and substantially in issue, I find it very difficult to say that this question should be answered in the affirmative. It may no doubt be argued that as the plaintiff could not have taken advantage of any favourable finding in the former judgment on the question of the defendant's liability by reason of the decree being in spite of such finding, be ought not to be held bound by any unfavourable finding on that question. But the answer to that argument is this, that the plaintiff might well have avoided the effect of an adverse finding on the question of liability by asking the Court to determine first the question of notice, and not to go into the question of liability if the question of notice was found against him. If instead of doing that, the plaintiff led the Court and his adversary to go into the whole question of the liability of the defendant, presumably at considerable expense of time to: both, it is too late now for him to complain of the result; and we should not be keeping in view the reason for the rule of res judicata which is to give finality to litigation, and to prevent any one from being twice vexed for the same matter, if we were to hold that the decision in the former suit does not operate as res judicata.
14. There is one other point of view suggested by the language of the former Judgment from which the question might be viewed. Though the Court in the previous suit decided the question of notice against the plaintiff, it seems. that it came to a somewhat hesitating decision upon that point, and so, to strengthen its conclusion that the suit ought to be dismissed, it went into the question of the defendant's liability as well, and found that no liability was established. If that was so, it could not be said that the decision upon the question of liability was not necessary for the disposal of the suit.
15. The only authority cited in support of the view contended for by the learned Vakil for the petitioner is the case of Shib Charan Lal v. Raghunath I.L.R. 17 All. 174. That case is, however, quite distinguishable from the present. For the question for decision in that case was, whether the finding as to title in favour of the plaintiff in a former suit under Section 42 of the Specific Relief Act, which was dismissed by reason of the plaintiff being found to be out of possession, and therefore not entitled to ask for a mere declaratory decree, could operate as res judicata in a subsequent suit, and the question was, as it ought to have been, answered in the negative, the decree in the previous suit having been in spite of the finding in favour of the plaintiff upon the question of title, and having, therefore, in effect superseded that finding. That is not, as I said above, the nature of the question in this ease. It is true that the learned Judges in their judgment in Shib Charan Lal v. Raghunath I.L.R. 17 All. 174 observe : 'Further if there were two findings of fact, either of which would justify in law the making of the decree which was made, that one of such two findings of fact which should in the logical sequence of necessary issues have been first found and the finding of which would have rendered the other of such two findings unnecessary for the making of the decree which was made, is the finding which can in our opinion operate as res judicata.' And these observations no doubt are in favour of the petitioner. But they were not necessary for the decision of the case; and with all respect for the learned Judges who made those observations.
16. I am unable, for the reasons given above, to follow in this ease the rule end bodied in them. I may add that, though the decision of either of two issues may be sufficient for the determination of a case, and though their logical sequence may be clear, yet where a Court does go into both of them instead of resting its conclusion upon the decision of that one of them which comes prior in point of logical order, it is not always easy or safe to say that the decision of the last mentioned issue alone was in fact necessary, and that the decision upon the other issue was superfluous.
17. When the law prohibits a second trial, not only of a suit for the same matter, but also of a direct and substantial issue in it, it is impossible to avoid the conclusion arrived at by the lower Court.
18. For the foregoing reasons, I think that the Court below was right in its decision, and that this rule ought to be discharged with costs.