1. This is an appeal from the judgment of my learned brother Mr. Justice Greaves. The suit was by the plaintiffs claiming, as heirs of their deceased father, certain properties which were mentioned in the plaint.
2. The learned Judge has disposed of the case upon a preliminary point, namely, that the suit would not lie by reason of the provisions of Section 11 of the Civil Procedure Code and by reason of a previous suit which was instituted in 1912. It appears that when the suit of 1912 was instituted, the father of the plaintiffs was still alive. It is, therefore, obvious that when the suit was instituted, the plaintiffs could not claim as his heirs. But the father, who was one of the defendants, died shortly after the suit was instituted, and an amendment was made recording the death of the father (Dilchand) and a new summons was issued to the remaining sole defendant. Then all matters in dispute in that suit were referred to arbitration: and, after the reference the plaintiffs desired to raise the point which they are raising in this suit, and they applied to the Court that they might have an opportunity of amending the plaint by raising in that suit the claim which is now being raised in the present suit. That application was refused, and the Court has now held that although the plaintiffs applied in the first suit to raise the point which they are now raising, and although that application was refused, their present suit must be held to be untenable, because the question is res judicata. In my judgment the learned Judge's decision cannot be supported, first, because in this suit the plaintiffs are suing under a different title to that under which they were endeavouring to support their claim in the first suit: and, secondly, because the plaintiffs did attempt to raise this point in the first suit but were not allowed by the Court to do so.
3. For these reasons the judgment must be set aside and the suit must be remanded to the learned. Judge on the original side for trial. The appellants are entitled to the costs of this appeal and also to the costs in the Court of first instance.
4. I agree.
5. I agree.