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Jiban Das Oswal and anr. Vs. Durga Pershad Adhikari and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1894)ILR21Cal252
AppellantJiban Das Oswal and anr.
RespondentDurga Pershad Adhikari and ors.
Cases ReferredMon Mohan Sarkar v. Secretary of State
Excerpt:
res judicata - suit for possession and mesne profits--ex-parte decree for possession without mention of mesne profits--subsequent suit for same mesne profits and for subsequent mesne profits--civil procedure code (act xiv of 1882), section 13. - banerjee, j.1. this appeal arises out of a suit for mesne profits. the lower appellate court has held that the plaintiffs' claim for a portion of the time for which mesne profits are sought to be recovered is barred as res judicata.2. on second appeal it is contended on behalf of the plaintiffs that the decision of the lower appellate court is wrong. we do not think this contention is sound. in their suit for possession the plaintiff's claimed mesne profits in respect of the time between the date of dispossession and the date of suit, and the decree in that suit said nothing about the claim for mesne profits. in the present suit the plaintiffs claim mesne profits as well in respect of the period preceding the date of institution of the former suit as in respect of the period succeeding.....
Judgment:

Banerjee, J.

1. This appeal arises out of a suit for mesne profits. The Lower Appellate Court has held that the plaintiffs' claim for a portion of the time for which mesne profits are sought to be recovered is barred as res judicata.

2. On second appeal it is contended on behalf of the plaintiffs that the decision of the Lower Appellate Court is wrong. We do not think this contention is sound. In their suit for possession the plaintiff's claimed mesne profits in respect of the time between the date of dispossession and the date of suit, and the decree in that suit said nothing about the claim for mesne profits. In the present suit the plaintiffs claim mesne profits as well in respect of the period preceding the date of institution of the former suit as in respect of the period succeeding that date and extending up to the date of recovery of possession. The Court of Appeal below has held that the claim in respect of the former period is barred, but that in respect of the latter period is not. The learned vakil for the appellant contends that as there was no issue tried upon the question of mesne profits claimed in the former suit, the decision in the former suit cannot operate by way of res judicata. This contention is, in our opinion, clearly opposed to the provisions of Explanation III to Section 13 of the Code of Civil Procedure, which provides that any relief claimed in the plaint, which is not expressly granted in the decree, shall for the purpose of that section be deemed to have been refused. In the present case mesne profits in respect of the period prior to the date of the former suit were clearly claimed in the plaint in that suit, and were not expressly granted by the decree. They must, therefore, under Explanation III, be deemed to have been refused for the purposes of Section 13, that is, as we understand it, for the purpose of determining the question whether that part of the claim should or should not be held to be barred by the principle of res judicata in this second suit. Now, if it is to be deemed to have been refused, we must hold that the matter in respect of the mesne profits in question was determined by the former suit, and deter-mined adversely to the plaintiff; and if that is the proper meaning of Explanation III, that part of the claim can no longer be adjudicated upon.

3. It was urged for the appellants that the decision of this Court in the case of Mon Mohan Sarkar v. Secretary of State for India I.L.R. 17 Cal. 968 is authority in favour of their contention. We do not think so. All that was decided in that case was that the prayer for mesne profits in a former suit, in respect of the period between the date of the institution of the suit and the date of delivery of possession, not being granted in that suit should not be held to operate by way of res judicata in a second suit for mesne profits for the same period; and the ground upon which that decision is expressly based is that it is not obligatory on the Court to grant such relief, but that the Court may in its discretion grant mesne profits in respect of the period following the date of suit or not. It was accordingly held that the not granting of that which the Court was not bound to grant, and which the Court might or might not have granted, should not necessarily raise the inference that it was refused. That case, therefore, has no application to the present.

4. It was further argued that Explanation III is meant only to bar so much of the claim as is expressly dealt with in the judgment but is not referred to expressly in the decree. We find neither reason nor authority for such a contention. If any matter is expressly dealt with in the judgment, the principle of res judicata would apply to it, notwithstanding that the decree does not refer to it expressly, by reason of the express words in the enacting part of Section 13 which says: 'No Court shall try any issue which has been heard and determined in a former suit;' and if the object of Explanation III was merely to prohibit the trial in a second suit of an issue already tried and determined in a former suit, notwithstanding the absence of any allusion in the decree to the matter so dealt with, Explanation III might as well have not been given.

5. For all these reasons we think that the decision arrived at by the Lower Appellate Court is correct and that this appeal must be dismissed with costs.


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