Chandavarkae, J.:— There was no doubt a decision on the merits in the previous suit, which is relied upon by the appellant as barring the present suit as res judicata; and the title of reversionary heir, which was claimed there as it is claimed here by the 1st respondent, was negatived by the finding of the Subordinate Judge, who tried that previous suit. But the Subordinate Judge also gave another reason for dismissing that suit of the respondent. The reason was, that the plaint had been undervalued and that the plaintiff (the 1st respondent in this second appeal) had refused to pay the additional Court-fee. If this last reason was sufficient by itself for the dismissal of the previous suit, the findings on the issues on the merits were not necessary for the decision of the suit and cannot have the force of res judicata: Ghela, Ichharam v. Sankalchand Jethu(1).
The question, then, is whether the ground of undervaluation was sufficient by itself for the dismissal of the previous suit. Section 54 of the Code of Civil Procedure (Act XIV of 1882), which was in force then, required that the “plaint shall be rejected,” if undervalued. Instead of rejecting the plaint before registration, the Subordinate Judge dismissed the suit after its registration and after trial. But after the suit had been registered, the Subordinate Judge had power to reject it at any subsequent stage on the ground of improper valuation. And, as was held by this Court in Dullabh Jogi v. Narayan Lakhu whether a suit is rejected on that ground before registration or at any subsequent stage, the effect is the same “as if the plaint had been originally rejected It was also held in that case that the rejection of a suit on the ground of Undervaluation at any stage of it does not make it res judicata for the purposes of a subsequent suit on the same cause of action or litigating the same title, because, as was said there by Couch, C.J,” “the former suit was not heard and determined, for it failed by reason only of an informality; and it would be contrary to all principles of justice that the parties should be held to be conclusively barred thereby.”
For these reasons the order of remand appealed from must be confirmed with costs.
Heaton, J.:— I concur in the order and reasons for it but express no opinion on the question whether if the decision in the earlier suit were to be regarded as a decision n the merits it would operate as a bar under section 11 of the Code of Civil Procedure.
Order confirmed.
R.R