1. Four suits were instituted and disposed of in one judgment both by the first Court and by the lower Appellate Court. Three were decreed in full and one was decreed in part and the decrees of the first Court were upheld by the lower Appellate Court. In this second appeal the plaintiff is the appellant and his contention is that he should have obtained a decree for the full amount of his claim. In these four suits there are two sets of plaintiffs, one set are the owners of 13 annas, 4 pies interest and the other set of 2 annas, 8 pies interest. The appellants in this appeal are the owners of the 13 annas, 4 pies interest. They claim rent on the basis of an ex parte decree passed in 1606 in a suit brought by the 16 annas co-sharers. Though the lower Court has held that this decree acted as res judicata at a fixed rate of rent, it has given a decree at the lower rate in this case on the finding that, after that decree, the plaintiff accepted rent from the defendants at the lower rate of Rs. 4 instead of the rate claimed, i.e., Rs. 1280. Though the first Court's judgment gives good reasons for this decision the learned Subordinate Judge in upholding this decision has fallen into an error in stating the materials on which his decision is based. One of the grounds of his decision is that the plaintiff sued the defendants for rent at the lower rats. It is conceded on the part of the respondents that there was never any suit for rent at the lower rate subsequent to the suit of 1903. The mistaken idea that there had been such a suit must have strongly influenced the learned Subordinate Judge in coming to his decision. It is necessary, therefore that he should re-hear the case and consider whether, on the evidence, it is established that the plaintiff by his conduct subsequent to the decree of 1906 is barred from sucCessfully claiming rent at the rate then decreed. The result is that this appeal is decreed, the judgment and decree of the lower Appellate Court are set aside and the appeal remanded to the lower Appellate Court for re-hearing and decision on the evidence on the record. Costs will abide the result.
In Nos. 671, 1113 AND 1114 OF 1918.
2. These three appeals arise out of three rent suits and the question to be decided is the rate of rent payable by the defendants. The plaintiffs have obtained decrees on the basis of former ex parte decrees for rent and the contention of the appellants is that these ex parte decrees are not binding and do not operate as res judicata,
3. The first contention is based on the Full Bench ruling in Modhusudun Shaha v. Brae 16 C. 300 : 8 Ind. Dec. (N.S.) 197 in which it has been held that a previous decree for rent does not necessarily operate as res judicata as to the rate of rent. Several other rulings were cited but none of them, in my opinion, carries the appellant's case any further than the authority of the Full Bench ruling; there cases now under consideration are distinguishable on the ground that the decrees which were obtained were decrees in suits for enhancement of rent. In such a suit the question of the rate of rent was an issue which must necessarily be decided by the Court and the Court's decision on that point would operate as res judicata. In a suit for enhancement of rent the declaration of the rate of rent is part of the substantive relief claimed, and that is sufficient to make the Full Bench ruling inapplicable to the present case.
4. The next point taken is that these ex parte decrees were vitiated by fraud. Both the lower Courts have held that there was no fraud. It is contended that the existence of fraud is a question of mixed law and fact and that, on the facts found, it should be held that one of these decrees, that of 1906, was obtained by what in law amounted to fraud. It appears that in this suit the defendants filed a written statement and issues were framed. Then, before the case came on for hearing, it was adjourned more than once because there was a talk of compromise. The compromise fell through and finally the suit was decreed ex parte in the absence of the defendants. Previous to this, a local enquiry had been held by the trying Munsif and he had some to the conclusion that the area of the land which was under claim was not 2 1/2 cottas as alleged by the plaintiffs but 2 cottas. It is found that when the Munsif gave judgment he overlooked the actual quantity of the land, and it is suggested that it was the duty of the Pleader who appeared for the plaintiffs in that case to draw the attention of the Munsif to his previous finding and that his failure to do so in law amounted to a fraud on the part of the plaintiffs. The learned Pleader for the respondents in these appeals does not dispute the general proposition that it is the duty of a Pleader to put all the facts of the case before the Court and not to allow essential facts to be overlooked. But I think I must accept his contention that, even if a Pleader fails in his duty, though he may be liable to reprimand or possibly punishment under the Legal Practitioners Act, it cannot be said that such conduct amounts to fraud on the part of his principal his client. So far as any other fraud is alleged, the findings of fact of the lower Appellate Court are conclusive in the plaintiff's favour and I cannot hold there was in these cases such a fraud as would justify me in holding, under Section 44 of the Evidence Act, that the previous decree did not operate as res judicata.
5. The last contention is that the effect of these decrees was nullified by subsequent decrees in suits brought in 1912 in which it was agreed between the parties that the question of the rate of rent should be left open. It is contended that these decrees re opened the whole matter and the previous decrees no longer operate as res judicata in fixing the rate of rent. But it appears that, in coming to this arrangement, the parties also agreed that 'the plaintiffs would not lose any right which they might have acquired in the previous suits between the parties and their position would remain unaffected by the result of these suits;' that is to say, it was expressly agreed that if these decrees of 1906 and 1908 had in law the effect of settling the rent payable by the defendants that right of the plaintiffs would not be lost by the decrees in the suits of 1912. For the above reasons, I hold that the lower Appellate Court was right and that the previous decrees operated as res judicata on the question of the rate of rent payable.
6. The appeals are accordingly dismissed with costs.