The Judgment of the Court was delivered by

Gopalan Nambiyar, J.:— An interesting question of res judicata which has occasioned this reference to a Division Bench has been debated in this Second Appeal. The unsuccessful defendant in the courts below is the appellant before us. The suit against him was for recovery of the plaint schedule house with arrears of rent and future rent, on the strength of an oral lease, alleged to have been made on 14-41-1955, on a monthly rent of Rs. 7. The defence was that the oral lease set up was not true and that the property was held on a monthly rent of Rs. 3, under an entrustment of 1944. Both oral and documentary evidence were adduced by the parties in support of their respective contentions. Both the courts below without going into any of these, decided the case in favour of the plaintiff, on the ground that in a prior small cause suit, S.C 16 of 1960, Munsiff's Court, Tellicherry, the oral lease as alleged by the plaintiff had been found and that the judgment in the said suit (Ext. A-2) constituted res judicata against the Defendant. The correctness of this finding has been assailed before us. Besides the importance of the question of involved, substantial rights seem to turn on the contention of the Defendant, for, if the entrustment was on a monthly rent of Rs. 3 as alleged by the Defendant, he would, according to him, be entitled to ‘Kudikidappu’ rights and therefore immune from eviction under the provisions of the Kerala Act 1/1964 and the subsequent legislations.

2. That the oral lease as set up by the plaintiff was found to be true in Ext. A-2 judgment is beyond controversy. Section 11 of the CPC in so far as it is material, enacts the rule of res judicata as follows:

“No court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court 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.”

3. On the language of the section, the condition as to the ‘competency’ of the court which tried the former suit to try the subsequent one, is clearly not satisfied, and the bar of res judicata as enacted by the section is not attracted. But for the plaintiff-respondent, the matter was claimed to be res judicata on general principles, in two ways: (1) that Section 11 prescribed the rule of res judicata only in respect of adjudications by ordinary ‘civil courts’, of which the small cause court, it was said, was not one, and its adjudication therefore is not hidebound by the limitation as to ‘competency’ enacted by Section 11; and (2) that quite apart from, and independently of, the provisions of Section 11, Ext. A-2 judgment is conclusive, on the general principles of res judicata which do not enjoin the condition as to ‘competency’. Section 11 of the CPC affords no warrant to import any distinction between the ordinary ‘civil courts’ and ‘small cause courts’; nor, to regard the latter as outside the purview of the former. The expression “court” used therein, is comprehensive in its sweep to cover the small cause courts as well. Sufficient indications are available from the Code of Civil Procedure, the Kerala Small Cause Courts Act, 1957, and from the Kerala Civil Courts Act, 1957 to conclude that the small cause court is an ordinary civil court. Section 3 of the CPC dealing with the subordination of courts mentions also a court of small causes. Save the provisions excepted by section 7 and Order L, the rest of the Code is applicable to small cause courts also. And Section 9 of the Code confers comprehensive jurisdiction on all courts to try suits of a civil nature except those, the cognizance of which is expressly or impliedly barred. Section 2 of the Kerala Civil Courts Act, enumerates the classes of ‘Civil Courts’ in the State “in addition to the courts established under any other law for the time being in force”, thereby implying that the small cause court established by such ‘other law’ is a ‘civil court’. Section 18 provides for investiture of a District Judge or Subordinate Judge or Munsiff with small cause jurisdiction upto certain pecuniary limits. Section 12(2) of the Kerala Small Cause Courts Act provides that subject to exceptions, all suits of a civil nature not exceeding a certain value, shall be cognizable by a court of small causes. The provisions of Section 13 of the said Act will be referred to later. In addition to the above statutory provisions, we may usefully refer to the following observations of Venkatarama Iyer, J. in Kalavagunta Srirama Rao v. Kalavagunta Suryanarayanamurthy, AIR 1954 Mad 340:

“Mr. Ch. Ramakrishna Rao argued that it is only courts constituted under the Madras Civil Courts Act 3/1873, that could be called civil courts. Putting it in another way he contended that it is only the courts governed by the Code of Civil Procedure that could be called civil courts. No authority was cited for placing such a construction on the words “civil courts”. In their ordinary acceptation, those words mean courts which adjudicate on civil rights. A civil proceeding is defined in Stroud's Judicial Dictionary as a

“process for the recovery of individual right or redress of individual wrong; inclusive in its proper legal sense of suits by the crown.” (‘Bradlaugh v. Clarke’, (1883) 52 LJQB 505).

Therefore courts which decide disputed rights between subjects or between a subject and the State would be civil courts as opposed to criminal courts where the State vindicates wrongs committed against the public.”

4. We may recall also the observations of the Privy Council in ‘Nilmoni Singh Deo v. Taranath Mukherjee, (1883) ILR 9 Cal 295 (PC) on the question whether the Revenue officials exercising powers under the Bengal Rent Act could be said to be civil courts, Lord Hobhouse observed:

“It must be allowed that in those sections there is a certain distinction between the civil courts there spoken of and the rent courts established by the Act, and that the civil courts referred in Section 77 and the kindred sections, means civil courts exercising all the powers of civil courts as distinguished from the rent courts which only exercised powers over suits of a limited class. In that sense there is a distinction between the terms; but it is entirely another question whether the rent court does not remain a civil court in the sense that it is deciding on purely civil questions between persons seeking their civil rights, and whether, being a civil court in that sense, it does not fall within the provisions of Act 3 of 1859”.

5. After noticing the above observations of the Privy Council, Venkatarama Iyer, J. in the Madras case noticed supra, proceeded:

“These observations show that courts constituted for “deciding on purely civil questions between persons seeking their civil rights”, must be considered to be civil courts, notwithstanding that they are created by a special statute and are mentioned in that statute as distinct from civil courts. The true import of such a distinction is that while special courts have jurisdiction over a limited class of suits specified in the statute the jurisdiction of the civil courts is not limited to any class of suits. To this extent there is a distinction between the two classes of courts but in respect of the class of suits actually entrusted to the jurisdiction of special courts, they perform in relation to them functions which, but for the special Act would have been performed by civil courts and to that extent the special courts can be said to be civil courts in a different attire.”

6. In support of the submission that the Code of Civil Procedure was concerned only with the procedure for trial of suits in the ordinary civil courts, reliance was placed on the following observations of the Supreme Court in Gulab Chand v. State of Bombay, (1965) 2 SCR 547 : (AIR 1965 SC 1153):

“The legislature was providing in the Code of Civil Procedure for the trial of suits over which the civil court was given jurisdiction under the provisions of the Code.”

7. The preamble of the Code of 1908 reads:

“Whereas it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature; It is hereby enacted as follows:—”

The Code was dealing with procedure of the Civil Courts only and had therefore not to consider what would be the effect on the trial of suits in view of the provisions of other enactments or of general principles of res judicata or of any other kind. It had to restrict its provision about res judicata to the effect of decisions in a civil suit on a subsequent civil suit and therefore enacted Section 11 in the form in which we find it.”

8. Even wrenched out of its context, it is too much of a strain to extract from the above observations that a small cause court is not a civil court.

9. We shall then proceed to consider whether the rule of res judicata enacted under Section 11 of the CPC is comprehensive and exhaustive in regard to the decisions in suits or whether even in respect of them, recourse can be had to the general principles of res judicata de hors the section. Accepting that the rule of res judicata has been engrafted as it was considered desirable to put an end to litigation, we think it useful and necessary to recall the words of caution administered by Sir Barnes Peacock, C.J and in Mst. Edun v. Mst. Bechun, (1867) 8 Suth WR 175:

“It appears to me to be of much more importance in this country than it would be in England, that in order to render a judgment between the same parties, upon the same point in one Court, conclusive in another Court, the two Courts must be Courts of concurrent jurisdiction. If it were not so, the whole procedure as regards appeals might be entirely changed.”

10. The decision was referred to by the Privy Council in Misir Raghobardial v. Sheo Baksh Singh, (1883) ILR 9 Cal 439 (PC) as the leading case on the subject. Their Lordships observed at page 444:

“In their Lordships' opinion it would not be proper that the decision of a Munsiff upon (for instance) the validity of a will, or of an adoption, in a suit for a small portion of the property affected by it, should be conclusive in a suit before a District Judge or in the High Court, for property of a large amount, the title to which might depend upon the will or the adoption. Other similar cases are mentioned in the judgment of the Chief Justice. It is true that there is an appeal from the Munsiffs decision, but that, upon the facts, would be to the District Court and not to the High Court. And that the decision should be conclusive would be still more improper as regards many other of the various Courts in India, the qualification of whose Judges differ greatly. By taking concurrent jurisdiction to mean concurrent as regards the pecuniary limit as well as the subject-matter, this evil or inconvenience is avoided; and although it may be desirable to put an end to litigation, the inefficiency of many of the Indian Courts makes it advisable not to be too stringent in preventing a litigant from proving the truth of his case.”

11. Again in Run Bahadur Singh v. Lucho Keer, (1885) ILR 11 Cal 301 (PC) the Judicial Committee observed, approving the judgment of Sir Barnes Peacock, C.J, noticed earlier:

“If this construction of the law were not adopted, the lowest Court in India might determine finally and without appeal to the High Court, the title to the greatest estate in the Indian Empire”.

12. The observations of the Privy Council in ILR 9 Cal 439 were referred to by the Supreme Court in Gulab Chand's case, (1965) 2 SCR 547 : (AIR 1965 SC 1153) for showing that the general rule of res judicata was applied in this country despite the specific statutory provision in Section 2 of the CPC of 1859. The Supreme Court then noticed Section 13 of the Code of 1882 which was in identical terms with Section 11 of the Code of 1908. It proceeded to survey the decisions where the principle of res judicata was made applicable even where the prior adjudication was not in a suit but in proceedings by courts of exclusive jurisdiction. Such were cases of proceedings in Land Acauisition Courts, administration suits, probate proceedings and writ proceedings. The principle is now well settled that:

“a plea of res iudicata on general principles can be successfully taken in respect of courts of exclusive jurisdiction” vide Raj Lakshmi Dasi v. Banairath Sen, 1953 SCR 154 : (AIR 1953 SC 33).

13. The authorities on the point have been exhaustively covered by Gulab Chand's case, 1965-2 SCR 547 : (AIR 1965 SC 1153).

14. We should however stress the decisions of the Supreme Court in Mst. Gulab Bai v. Manphool Bai, AIR 1962 SC 214 and Janakirama Iyer v. Nilakanta Iyer, AIR 1962 SC 633. Para. 12 of the former decision stated:

“This position has been clearly stated in another decision of the Privy Council in Gokul Mandar v. Pudmanund Singh, (1602) ILR 29 Cal 707 (PC). On this occasion the Privy Council had to consider the effect of Section 13 of the Code of 1882. The argument which was urged before the Privy Council on Section 13 was that “a decree in a previous suit cannot be pleaded as res judicata in a subsequent suit unless the Judge by whom it was made had jurisdiction to try and decide not only the particular matter in issue but also the subsequent suit itself in which the issue is subsequently raised” and in upholding this argument their Lord ships observed that “in this respect the enactment goes beyond Section 13 of the previous Act X/1877, and also as appears to their Lordships, beyond the law laid down by the Judges in the Duchess of Kingston's case, 2 Sm LC (13th Ed) 644”. In other words, this decision would show that even though in the earlier Codes there may have been some doubt about the test of competent jurisdiction which has to be applied to the Court which tried the earlier suit, position under the Code of 1882 is absolutely clear.

15. Similarly paragraph 16 of the latter decision said:

“That takes us to the question of res judicata. The argument is that on general grounds of res judicata the dismissal of the suit (O.S No. 30 of 1943) filed by defendants 1 to 6 should preclude the trial of the present suit. It has been fairly conceded that in terms Section 11 of the Code cannot apply because the present suit is filed by the creditors of defendants 1 to 6 in their representative character and is conducted as a representative suit under Order 1, Rule 8; and it cannot be said that defendants 1 to 6 who were plaintiffs in the earlier suit and the creditors who have brought the present suit are the same parties, or parties who claim through each other. Where Section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata. We are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be the provisions of Section 11 and no other. In our opinion therefore, there is no substance in the ground that the present suit is barred by res judicata”, (underlining ours)

16. The above pronouncements are categoric that where the doctrine of res judicata is sought to be invoked with respect to the decisions in suits, section 11 of the CPC is exhaustive and you cannot travel outside its provisions; but if invoked with respect to proceedings adjudicated in courts of exclusive jurisdiction you may break the frontiers of section 11 and resort to the general principles of res judicata. Notwithstanding the strenuous efforts made by Counsel for the Respondent, we feel that this position has in no way been shaken by the Supreme Court's pronouncement in Gulab Chand's case, 1965-2 SCR 547 : (AIR 1965 SC 1153). Indeed, in Gulab Chand's case, 1965-2 SCR 547 : (AIR 1965 SC 1153) the Supreme Court affirmed its prior decision in Janakirama Iyer's case, AIR 1962 SC 633, as follows:

“It is made one of the conditions for the application of a previous decision to operate as res judicata to be that the previous decision is made not only by a Court competent to make it but by a Court which may be competent to try the subsequent suit. This condition must have been considered necessary in view of the observations of the Privy Council in Misir Raghobardial's case ((1882) 9 Ind App 197), and on account of the hierarchy of Courts under the various Acts constituting Courts of civil judicature and it could have been felt that a decision by a Court which is not competent to decide the subsequent suit be not treated of a binding nature. Such an exceptional procedure seems to have been provided as matter of precaution as the Court not competent to try the subsequent suit must necessarily be a Court of inferior jurisdiction and therefore more liable to go wrong. Whatever the reason may be, the provisions of Section 11 will govern a previous decision in a suit barring a subsequent suit with respect to the same matter in controversy and general principles of res judicata in such particular circumstances will neither be available to bar a subsequent suit nor will be needed. It is in such context that the remarks of this Court in Janakirama Iyer's case at p. 224 are to be considered. In that case, the decision in a previous suit could not operate as res judicata in accordance with the provisions of Section 11 of the Code, because the parties in the two suits could not be said to be the same parties or parties who claimed through one another. It was then said:

“Where Section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata. We are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be the provisions of Sec. 11 and no other”.

17. The observations are to be read in the context in which they are made, the context being that the question of res judicata was being considered in connection with the decision in a previous suit and the parties in the two suits being not the same. In fact, general principles of res judicata also require that the earlier decision be between the same parties. A decision not inter partes cannot, even on general principles of res judicata, operate as res judicata in a subsequent suit.”

18. We should have been content to rest our decision of this case — and would safely rest the same — on the above principles and pronouncements of the Supreme Court and old that there is no res judicata by reason of Ext. A-2. But we have been taken through a bewildering maze of case law, and, in fairness, we think it necessary to refer to at least a few of these cases. Accepting the principle that proceedings in a court of exclusive jurisdiction can operate as res judicata in a subsequent suit, and forgetting that the principle can have no application when the prior and subsequent adjudications are in suits. Counsel for the Respondent claimed that a Court of Small Causes was a Court of exclusive jurisdiction and its pronouncement would therefore operate as res judicata. It is convenient to start a survey of the case law bearing on this aspect of the matter with Ghulappa Bin Balappa v. Raghavendra Swamirao, (1904) ILR 28 Bom 338. Three separate suits, O.S No. 162/1897, O.S No. 380/1897, and O.S No. 9 of 1898 were filed for separate amounts due under three different bonds executed by the defendant. The first of them was a regular (original) suit, and the other two were small cause suits. The parties agreed to abide by the decision in the first of these suits. The defence was that under Ext. 85, all the three bonds had been discharged, and satisfaction entered. The document was found to be a forged one by the Subordinate Judge in O.S No. 162 of 1897 and all the three suits were decreed. On appeal by the defendant the document was found genuine and the judgment reversed. Whereupon, the Defendant applied for review of the decisions in the small cause suits (O.S No. 380 of 1897 and O.S No. 9 of 1898) and raised the plea that an independent consideration of the genuineness of Ext. 85 was barred by res iudicata, notwithstanding that O.S No. 162 of 1897 was within the cognizance of the Sub-Judge in his small cause jurisdiction. The plea was upheld by the High Court. Jenkins, C.J, in a short and instructive judgment observed:

“In our opinion effect should have been given to the plea of res judicata on the rehearing of the suit, for, the Court which passed the decree in suit No. 162 of 1897 was a Court of jurisdiction competent to try this suit. Its inability to entertain it arose not from incompetence, but from the existence of another Court with a preferential jurisdiction. The rule must therefore be made absolute and the suit dismissed. The plaintiff must pay the costs of suit and rule but only one set.”

19. The principle thus stated with brevity and clarity by Tenkins, C.J, has been followed in innumerable decisions. (See for instance (1) Raja Simhadri Appa Row v. Ramachandrudu, (1904) ILR 27 Mad 63 overruled on a different point in Avanasi Gounden v. Nachammal, (1906) ILR 29 Mad 195; (2) Madhorao v. Amrit Rao, AIR 1918 Nag 163. For other cases see AIR 1934 All 530, AIR 1932 Bom 486, AIR 1938 Rang 35, AIR 1943 Oudh 449, AIR 1952 All 628, and AIR 1959 Punj 420).

20. As against this array of authorities our attention was called to certain decisions which seem to take a contrary view. In Newton Hickic v. Official Trustee of West Bengal, AIR 1954 Cal 506, the facts were these. The Official Trustee brought two suits for ejectment, in respect of the upper and lower flats respectively, of a building let out on two different tenancies to the defendant on monthly rents of Rs. 350/- and Rs. 375/- respectively. The suits were decreed ex parte. Appeals to the Court of Small Causes and further revisions to the High Court, failed. The tenant thereafter brought a suit in the High Court on the averment that there was a single indivisible tenancy regarding both the flats on a rent of Rs. 375/- per mensem, and prayed for a declaration that the decrees of the Small Cause Courts were nullifies as they had no jurisdiction to try a suit on tenancy the monthly rent of which exceeded Rs. 500/- p.m (Section 16 of the Rent Control Act, 1960 read with Schedule B declared that notwithstanding contained in any other law a suit by a landlord against a tenant in which recovery of possession is claimed shall lie only in the High Court where the monthly rent exceeds Rs. 500/-, and in all other cases, to the Chief Judge of the Calcutta Court of Small Causes) G.K Mitter, J., in the first instance, and Chakravarthy, C.J and S.R Das Gupta, J., on appeal, held that the latter suit was barred by reason of prior decision in the small cause suits. Mitter, J., seems to have been of the view that the Court of Small Causes was a Court of exclusive jurisdiction and that the principle laid down in Raj Lakshmi Dasi's case, AIR 1953 SC 33 was attracted. On appeal, the learned Judges sustained the decision, but on the ground that the case was governed by Section 44 of the Indian Evidence Act, and the same had nothing to do with the competency of the former Court to try the subsequent suit, but only with its competency to try the former suit, which they held, it had. The decision is distinguishable, and not helpful to the Respondent. In Lala Jageswar Prasad v. Shyam Behari Lal, AIR 1967 All 125 a learned Judge, after review of the authorities held that the decision of a Small Cause Court in a prior suit for arrears of rent was res judicata on the question of the contract of tenancy in a latter suit for arrears for the subsequent period, the value of which, was beyond the pecuniary jurisdiction of the Small Cause Court. The decision was rested on the ground that the controversy as to whether the general rule of res judicata was applicable in such cases was concluded by the decision of the Supreme Court in Raj Lakshmi Dasi's case, AIR 1953 SC 33 and the decision in Bhagwan Dayal's case, AIR 1962 SC 287 and Janakirama Iyer's case, AIR 1962 SC 633. With respect, we cannot agree with the decision. In Raj Lakshmi Dasi's case, 1963 SCR 154 : (AIR 1953 SC 33) and Bhagwan Dayal's case, AIR 1962 SC 287 the prior decision was in proceedings in Courts of exclusive jurisdiction, and in Janikarama Iyer's case, AIR 1962 SC 633 in a? suit. The Allahabad decision further held that on the language of Sections 15, 16 and 27 of the Provincial Small Cause Courts Act, the Small Cause Court was a Court of exclusive jurisdiction. The decision in (1904) ILR 28 Bom 338 and the numerous decisions which followed it and held that a Small Cause Court is only one of preferential jurisdiction were not noticed. Pronouncement on the question whether a Small Cause Court is one of preferential or of exclusive jurisdiction, is, on the view we take, unnecessary. But we are inclined to agree with the principle stated by Jenkins, C.J, in the Bombay case, (1904) ILR 28 Bom 338. The provisions of the Kerala Small Cause Courts Act, the Kerala Civil Courts Act and of the Code of Civil Procedure only confirm us in the said view. The provisions of Section 24(4) of the CPC and of Section 9 emphasise that there is no inherent incapacity in an ordinary Civil Court to try a suit of a Small cause nature. The same is in no way affected by the provisions of Section 13 of the Kerala Small Causes Courts Act which reads:

“Exclusive jurisdiction of Courts of Small Causes — Save as expressly provided by this Act or by any other enactment for the time being in force, a suit cognisable by a Court of Small Causes shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable.”

21. The position disclosed by the section appears to us in no way different from what was stated by Jenkins, C.J, in (1904) ILR 28 Bom 338. We may also note the observations in ILR 27 Mad 63.

“Under the Small Cause Courts Act a suit cognisable by a Small Cause Court is not to be instituted and tried by an ordinary Civil Court if, and so long as, within the local limits of its jurisdiction a Small Cause Court is established competent to take cognizance of such small cause suit. But that circumstances does not, within the meaning of Section 13 of the CPC, make the ordinary Civil Court, viz., in this case the Court of the District Munsiff of Gudivada on his regular side a Court which is not a Court of jurisdiction competent to try the present suit.”

22. Were a decision on the point necessary, we would have been prepared to hold that a small cause court is not a court of exclusive jurisdiction, but only one of preferential jurisdiction; so that even on the general principles of res judicata. Ext. A-2 judgment cannot operate as such in the instant case. In P.M Yusuf v. Mohd. Haji Thayoob Sait, 1966 Ker LJ 624, a learned Judge of this Court held that a judgment in a small cause suit for rent would operate as res judicata on the question of the relationship of landlord and tenant between the parties in a subsequent suit in the Rent Control Court for eviction with arrears of rent, notwithstanding the fact that the small cause court was not competent to entertain the later suit. The learned Judge was doubtful whether a court of small causes can be regarded as a court of exclusive jurisdiction but felt it unnecessary to decide the question. The learned Judge felt that the Supreme Court's pronouncement in Gulab Chand's case, 1965-2 SCR 547 : AIR 1965 SC 1153 was clear that Section 11 of the CPC is not exhaustive with respect to an earlier decision operating as res judicata in a subsequent one. With respect, we cannot accept this construction placed on the Supreme Courts pronouncement in Gulab Chand's case, 1965-2 SCR 547 : AIR 1965 SC 1153. We have already indicated that the decision did not in any way shake the prior pronouncement in Janakirama Iyers case, AIR 1962 SC 633 to the effect that in regard to suits conditions for res judicata laid down in Section 11 of the CPC are imperative and exhaustive. The position has been neatly summarised in the latest edition of Mullas Code of Civil Procedure page 106.

“While thus the law is settled that the principles of res judicata can be applied to cases which do not fall within the four corners of Section 11, it is equally well settled that where a case does fall within its scope, the conditions laid down therein must be strictly complied with and that, if they are not, it is not permissible to hold that the matter is res judicata on general principles as that would render the section nugatory. Section 11 prescribes the conditions under which the decision in a suit can be res judicata and where it fails to satisfy those conditions, it cannot be held to be res judicata on general principles. So when the prior suit was tried by a Court not competent to entertain it, its decision could not be held to be res judicata on general principles.”

23. In the result, we allow this Second Appeal and hold that Ext. A-2 judgment cannot operate as res judicata. As neither the trial court nor the appellate court have considered the question of the terms of the tenancy or entrustment, in the light of the evidence and materials on record, we are constrained to remit the suit back to the trial court for disposal afresh in accordance with law and in the light of the observations made in this judgment. The appellant is entitled to his costs in this Court. Costs of hearing in the trial Court and lower appellate Court will abide, and be provided for, by the trial Court at the revised hearing.

24. Suit remanded for fresh trial.