The Judgment of the Court was as follows:

McNair, J.:— The suit out of which this appeal arises was brought by the Respondent Mangtulal Bagaria for Rs. 64,020-12 on account of royalty due from May, 1933 to April, 1939, on a mining lease.

2. The Appellants (who for convenience are referred to as the Murarkas) obtained that lease in 1920 from Popat Velji. The term was for a period of 994 years at a minimum royalty of Rs. 9,000 per year. Popat died in 1923, and Mangtulal one of his creditors on July 21st, 1924, applied for an order for administration in Insolvency of his estate under sec. 108 of the Presidency Towns Insolvency Act. Shortly thereafter on August 3rd, 1924, Papat's widows, who claimed to be entitled to maintenance, brought Suit 5126 of 1924 on behalf of themselves and all other creditors for administration of Popat's estate under the direction of the Court.

3. The original Defendant was Popat's father who was said to be in possession of the estate, and the Plaintiffs prayed for an enquiry to ascertain the estate at the time of Popat's death, for an account, and if necessary for the appointment of a Receiver.

4. In that suit Mangtulal and another creditor were appointed “administrator” of Popat's estate and on November 24th, 1924, there was a preliminary decree by consent referring it to the Registrar to take

(1) an account of the movable and immovable estate of Popat and of the rents and issues thereof;

(2) an account of the debts and funeral expenses of the deceased;

(3) to hold an enquiry as to the incumbrance, if any, on the immovable estate.

5. Mangtulal and another creditor were joined as Defendants. The order further provided that

“the estate of the said deceased be applied in payment of his debts and funeral and testamentary expenses in due course of administration”.

6. These words appear to make it clear that, although the form applicable to a preliminary decree in an administration suit was not followed in its entirety, the Court did in effect pronounce an administration decree.

7. Mangtulal was appointed administrator in terms and during the litigation which arose owing to the order of the Insolvency Court (which was later recalled) this Court has found that the estate was for a number of years administered by the Court and has referred to the order in Suit 5126 of 1924 as “a general administration order in the presence of the widows and certain creditors.”

8. In May, 1925, Mangtulal was discharged and the Official Receiver was appointed not as Receiver but as “Manager”; and on the 11th March, 1927, the Official Receiver was discharged and Mangtulal was appointed as “Manager” in his place with liberty to prosecute a pending suit, and with directions to pay all money that he collected into an account with the Imperial Bank of India and to hold the same subject to the further orders of the Court.

9. Two more suits must be mentioned.

(1) Suit No. 1571 of 1933 by Mangtulal’ against the Murarkas for arrears of royalty due up to 15th July, 1933, and amounting to over Rs. 65,000.

The suit went to arbitration and Mangtulal obtained an award for Rs. 17,750 which became a decree of Court; and

(2) Suit No. 28 of 1933 filed in the Court of the Subordinate Judge at Dhanbad and referred to throughout as “the Dhanbad suit.”

10. There the Murarkas sued Mangtulal and Popat's widows and brother for a declaration that a surrender of the lease alleged to have been made on July 31st, 1933, was valid, and had the effect of releasing them from all further demands for royalty. Cl. 9 of the lease under which the surrender purported to be made was as follows:—

“That when you finish the quarrying of coal within 994 years (nine hundred ninety-four years) or you desire to surrender this lease-hold land on any reasonable ground you will give one notice in writing by post under registered cover at least one year before and you will be competent to surrender by clearing the amount of commission or minimum royalty due to me or any amount due to me up to the time of surrender. But you will not be competent to surrender without clearing commission and minimum royalty, etc., all my dues up to the time of, surrender; and even if you do so it will not be accepted. Be it further stated that within six months from the date of surrender you will be competent to remove your machineries, tools and instruments, etc., and all the articles, etc., relating to the building from the lease-hold land without rendering the pit, etc., useless and altering the shape, etc., and causing any harm. But you will be able to change the shape which will be made for taking out the machinery, boiler, pump, tram line, etc., and you will not have to pay any damages for removing those things, etc., within the said six months; after the expiry of the said time, you will no longer be able to remove your things, etc. They will come into my khas possession fully. You will not be able to make any claim therefor. Even if you do so, it will be rejected.”

11. The Subordinate Judge held that the suit would not lie since Mangtulal was a “public officer” and no notice had been served on him under sec. 80 of the Civil Procedure Code. He found that the lessees had good grounds for surrendering the lease but that the notice of surrender in terms of cl. 9 which had been addressed to five persons including Popat's widows had not been properly served on any of those persons other than on the Respondent Mangtulal. That the “offer of royalty was at best a conditional one and did not fulfil the terms of a valid tender” and that the surrender should have been made by registered deed and to the immediate reversioners which had not been done; and finally that the royalty due at the time of surrender had not been paid. The Murarkas appealed from the judgment and decree of the Subordinate Court to the High Court at Patna.

12. There the widows consented to the appeal against them being allowed and to the suit being decreed, and they accepted the surrender of the lease as from August 1st, 1933 and the appeal was withdrawn as against Mangtulal.

13. The position then was that the lessor's legal representatives who on his death became entitled to his estate accepted the surrender by the lessees and in effect waived any irregularity or failure (if any existed) to observe the provisions of cl. 9 of the lease.

14. Mangtulal, however, the Manager appointed by the Court in the administration suit, still held the decree in his favour passed by the Subordinate Judge, since the appeal as against him had been withdrawn, and he, on May 1st, 1939, brought the present suit on the basis that the lease was still in existence and claimed Rs. 64,020-12 on account of royalty from May, 1933 to the end of April, 1939.

15. The suit came on for hearing before Ameer Ali, J., who on January 20th, 1942, framed the following issues:

Group A:—1. Is the defence barred by res judi cata:—

(i) on the question of surrender by the judgment and decree in the Dhanbad 23 of 1933 Case and Appeal 27 of 38 therefrom.

(ii) on the question of the Plaintiff's right to sue by

(a) the decree in Suit No. 1571 of 1933?

(b) the judgment and decree in the Dhanbad case?

2. Have the Defendants disclosed any defence in the absence of any alleged surrender to or with the leave of the Administration Court in Suit No. 2156 of 1924 in the Calcutta High Court?

Group B:—3. Was there a surrender?

4. If so, was it valid

(a) in the absence of registration

(b) for non-fulfilment of the requisite conditions?

5. Was the alleged surrender bona fide and is it binding on the Plaintiff?

and stated, according to the Court minutes,

“I am prepared to take the issue of res judicata for pre point (sic) and if the issue is decided in Plaintiff's favour I will not try the issues in Group B.”

16. It has been suggested that the learned Judge has in his judgment decided not only the issue of res judicata but also the second issue, the decision on which must in my opinion depend to some extent on the finding on the issues in group B, viz.,

(3) “Was there a surrender” and (4) “if so, was it valid”? and (5) was it bona fide and binding on the Appellant?

17. In his judgment at p. 43 of the paper book the learned Judge says “I have held and hold on the first set of issues in favour of the Plaintiff” and it is argued that the first set of issues includes Issue-2.

18. I can find no support in the judgment for any such contention and I have no doubt that in referring to “the 1st set of issues” the learned Judge refers to the four questions enumerated under issue 1 which are in fact the first set of issues.

19. The Court minutes show clearly that the learned Judge intended to deal only with the question of res judicata and as I read his judgment that is the only point to which he has directed his attention.

20. This is apparent from the 2nd paragraph of his judgment on p. 37 of the paper book where he summarises the points that arise immediately for decision—

Speaking from memory the position put crudely is as follows:—

“A suit for royalty in respect of mines. Defence surrender. Previous suit, previous decision as to surrender by a Court in another Province. Therefore reply to the Defendants' answer of surrender, res judicata, Reply or attempted reply, to res judicata. Mangtulal Bagaria has not the capacity which in that case it was assumed he had. The title and control of the estate was not in Mangtulal; it was in the heirs of Popat, the widows. If that is so the bar of res judicata is removed.”

21. Issue 2 would necessitate findings of fact on the issues in Group B and a determination of questions outside the preliminary question of res judicata to which alone the learned Judge directed his attention, and I have no doubt that he did not in fact, and never intended to, record his decision on any but the set of issues in issue (1).

22. Turning then to the questions that arise under Issue 1: The first point for determination tion is whether the decision in the Dhanbad suit is res judicata on the question of surrender.

23. The validity of the decision cannot be challenged, the only question is whether in fact there was or was not such a decision which precludes the parties to the present suit from re-opening the matters.

24. I have already referred to the findings of the Subordinate Judge. He held that Mangtulal alone was entitled to receive payment of all dues payable by the lessees on surrender of the lease; that he was a public officer within the meaning of sec. 80 of the Civil Procedure Code; and that the lessees were bound to give him notice of their suit under that section and that in default of such notice the suit must be dismissed. He has found further that in the circumstances operating at the time of the alleged surrender the lessees were justified in surrendering the lease, that the notice of surrender was duly served on Mangtulal, that the amount if properly tendered was sufficient to discharge the lessees' dues, but that no valid tender had been made, and the lessor's dues had not been discharged at the time of the alleged surrender, and therefore no valid surrender had been made so as to absolve the lessees from the payment of further royalty.

25. Mr. Justice Ameer Ali decided against the contention of the lessees that the widows of Popat still retained the rights of the lessor and that they and not Mangtulal were the proper persons to sue, to receive notice and to accept surrender, and he held that, notwithstanding the admissions by the widows in the appeal from the Dhanbad Court, Mangtulal as manager was entrusted with the power of the lessors; and the decision of the Dhanbad Court decided the same issue which had to be decided in the present suit and between the same persons.

26. Mr. B.C Ghosh on behalf of certain minor members of the Muraraka family argues that the decision of the Dhanbad Court cannot be res judicata, because that Court, having once decided that notice under sec. 80 of the Civil Procedure Code was inoperative, had no option but was bound to reject the plaint under Or. 7, r. 11 of the Code and to refuse to entertain the suit. Any decision therefore on the merits would be mere obiter dicta and could not operate as res judicata.

27. Sec. 80 provides, so far as is material, that

“no suit shall be instituted …. against a public officer for any act purporting to have been done by such public officer in his official capacity until the expiration of 2 months next after notice has been delivered to him or left at his office stating the cause of action, the name, description and place of residence of the Plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.”

28. The language of the section is imperative—not only must notice be given, but the plaint must contain a statement that such notice has been given and only then can the suit be instituted. In the absence of the notice or of the statement there is no suit with which the Court is empowered to deal.

29. Admittedly there was no such statement in the plaint in the Dhanbad suit. The validity of the suit in the absence of the notice was challenged in the written statement and was raised in the 6th issue which was—

6. Can the Plaintiffs institute this suit without serving a notice under sec. 80 of the Civil Procedure Code on Defendant No. 4?

30. This issue was dealt with first by the Subordinate Judge who held that “the want of such a notice is fatal to the case of the present Plaintiffs.”

31. It is argued that no further finding could be arrived at and that any finding at which the learned Judge professed to arrive could have no judicial consequence.

32. In support of this proposition reference has been made to Bachchu Singh v. Secretary of State(1) where the question arose whether a notice given under sec. 424 (the corresponding section in the Civil Procedure Code of 1882) by a party who dies before he institutes a suit will enure for the benefit of his representative and entitle him to maintain a suit without giving a fresh notice.

33. In construing the section, the Court (Stanley, C.J and Banerji, J.) said at p. 190 of the report—

“We must interpret the section according to the recognised rules for the interpretation of Acts of the Legislature. The section provides that ‘No suit shall be instituted’ unless the provisions of the section have been complied with. No stonger words of prohibition than these could well have been used.”

and again at p. 193 in comparing the provisions of the Charitable Trusts Act which were held to be merely directory, they say:

“How different is the language of sec. 434 of the Code, vie.‘No suit shall be instituted’, and ‘the plaint must contain a statement that such notice has been so delivered or left.’”

34. In the latter case words could not be found to express more clearly the duty of a Plaintiff to give the notice prescribed by the section as a condition precedent to his instituting a suit.

35. They held that the provisions of the section had not been complied with and the plaint ought to have been rejected under the provisions of sec. 54 (c) corresponding with Or. 7, r. 11 of the present Code.

36. In Midnapore Zemindary Co. v. N.N Roy(2) the Respondent sued the Appellant Company for possession of certain ekur land. The Appellants pleaded that they were occupancy tenants by transfer from Jardine Skinner & Co., who were prior to 1884 in occupancy of the lands. In a suit in 1877 by the Respondent against Jardine Skinner & Co., the Defendants pleaded an occupancy right, and that the suit was premature. The Subordinate Judge held that there was no occupancy right but that the suit was premature. The High Court upheld the finding that the suit was premature and thought that it would be a monstrous straining of the law to apply the term “rights of occupancy” to such an estate.

37. The Board held that the suit being premature the finding as to occupancy right would not found an actual plea of res judicata

“for the Defendants having succeeded on the other plea had no occasion to go further as to the finding against them.”

38. This statement that the finding was not a res judicata is in no way whittled down by the further statement in the judgment to the effect that the facts were in 1877 nearer to the Court's ken than they were in 1920, and there was a paramount duty on the Appellants to displace the finding, a duty which they had not been able to perform. This decision was followed in Ramaswami Reddi v. Thanawasal M. Reddi(3) where in answer to a suit for ejectment the Defendants pleaded that they were entitled to occupancy rights and had in any event never received notice to quit.

39. The trial Court held there was no notice to quit and the suit was not maintainable, but came to a further finding that the Defendants had no occupancy rights. In appeal the finding was upheld that the suit was not maintainable.

40. In a subsequent suit after giving notice to quit the Plaintiff sought to rely on the previous finding that there were no occupancy rights. The Court relying on the decision of the Privy Council in the Midnapur Zemindary Co.'s case held that the suit not being maintainable the finding as to occupancy rights was unnecessary and could not operate as a res judicata.

41. The matter seems to have been placed beyond all doubt by the judgment of the Board delivered by Lord Sumner in Bhagchand Dagadusa v. Secretary of State(4). Certain shop-keepers from whom a positive fine was being collected sued for a declaration that the nomination empowering the collection was invalid. The suit was instituted less than two months after notice.

42. The Board held that in the absence of compliance with sec. 80 of the Code of Civil Procedure the suit could not be maintained.

“Sec. 80” Says Lord Sumner “is is express, explicit and mandatory and it admits of no implication or exception”

43. And again

“to argue that the Plaintiffs had a right urgently calling for a remedy, while sec. 80 is mere procedure, is fallacious, for see. 80 imposes a statutory and unqualified obligation on the Court.”

44. Finally we find the following remarks.

“The consequence is that the Appellant's present position in regard to the taxes imposed on them is as if their action had never been brought. It was unsustainable in limine. They commenced their suit before the law allowed them to sue and can get no relief in it either by declaration or otherwise.”

45. In Jagadis Chandra D.D Deb v. Debendra P. Bagchi(5) a Bench of this Court held, following the above cases, that in view of the provisions of sec. 80 that the plaint shall contain an averment as to service of the notice it was the duty of the Court to look into the plaint, and when on the face of it there was no such averment, the Court should have held that the suit was one which could not be instituted and should have rejected the plaint instead of going on with the suit.

“The remarks which the Judge below had made on the merits of the suit are all obiter”.

46. The Respondent seeks to distinguish these decisions on the ground that all the issues in the Dhanbad suit were before the Court and no objection was raised to their being decided either in the trial Court or on appeal. Those issues it is argued must therefore be accepted by this Court and must operate as res judicata.

47. Assuming that no objection was raised as suggested in the Dhanbad suit, the failure to challenge the power of the Court to enter upon those issues would not confer jurisdiction upon the Court; and although, as pointed out by the Board in Midnapur Zemindary Co.'s case there might be considerable difficulty in displacing the findings arrived at they would not operate as res judicata since the Court had no jurisdiction to consider them. Once the Court has found that notice is necessary and has not been given, and that the plaint does not contain an averment to that effect, no valid suit is before the Court on which it can pronounce judgment and its sole duty is to reject the plaint under Or. 7, r. 11 (d) of the Code.

48. The case of Peary Mohan Mukerjee v. Ambica Churn Bandopadhya(6) is relied on in support of the Respondent's contention. That was a suit against the Uttarpara Municipality for damages for nuisance.

49. sec. 363 of the Bengal Municipal Act III of 1884 provides that no suit shall be brought against the Municipal Commissioners until one month after notice, and provides further that unless such notice be proved the Court shall find for the Defendant. The Court held that the suit failed both for want of notice and on the merits.

50. In a subsequent suit in respect of a similar nuisance at a later period the Court held that the matter in issue had been previously decided finally between the same parties and was barred by the plea of res judicata.

51. Sec. 363 of the Municipal Act does not contain the provision in sec. 80 of the Code that the plaint shall contain an averment that notice has been given, and in my view, the learned Judges who decided this case cannot have intended to decide any more than that, where a Defendant has set up a number of defences, all of which the Court has determined, every matter which has been put in issue and become the subject of decision may be pleaded as res judicata though any one of such issues may have been sufficient to determine the whole cause. Moreover Banerjee, J., points out that the first Court was doubtful on the question of notice and said

“If that be so it could not be said that the decision on the question of liability was not necessary for the disposal of the suit.”

52. and the Chief Justice concurred with that view.

53. This case was considered and followed by an Appellate Bench of this Court in Hafiz Md. v. Swarup Chand(7) in support of the proposition that any decision on an issue which supports the ultimate decision in the case must be regarded as res judicata, between the parties to the suit, while it was held that a decision on an issue which did not support the ultimate decree cannot operate as res judicata. In the present case the suit was determined so soon as the issue as to notice under sec. 80 was decided, and it was not only unnecessary but the Court had no power to decide any other issue.

54. Sec. 80 as I have already pointed out operates so as to remove all other issues from the jurisdiction of the Court, which is no longer competent to consider or decide them once it has come to the conclusion that the required notice is absent. The action, in the words of Lord Sumner, is as though it had never been brought. It was unsustainable in limine.

55. The right of the Plaintiff to sue depends not on res judicata but on the leave which he obtained from the Court both in Suit No. 1571 of 1933 and in the present suit.

56. It has been suggested that leave to sue was not properly obtained in the present suit inasmuch as the Plaintiff was granted leave to sue as “Receiver and Manager” and he had never held office as Receiver. It is true that the order granting leave uses the words “Receiver and Manager” but it appears from a perusal of the application for leave that the Court was aware of the capacity in which the applicant applied for such leave, and that he was in fact granted leave to sue by virtue of the office of “manager” to which he had been appointed by the Court.

57. Once Mangtulal was given leave to sue in Suit No. 1571 of 1933 his right to sue could not be challenged and the issue as to whether he could maintain the suit must per force be found in his favour.

58. The suit was referred to arbitration and there is no specific finding on the issue. The decree in Mangtulal's favour would imply that he had a right to sue but that right would be attributable to the leave obtained from the Court and cannot be relied on as a finding that Mangtulal was the proper person to sue. His title was never directly and substantially in issue and was never specifically decided.

59. In the result I am of opinion that the Dhanbad Court, once it had held that no notice had been given to Mangtulal under sec. 80 of the Code of Civil Procedure, had no option but to dismiss the suit under Or. 7, r. 11 of the Code and the findings of that Court on the merits are obiter and cannot operate as res judicata. The appeal is allowed with costs and the decree appealed from is set aside. The suit is remanded to the trial Court for trial of issues 2 to 5. The costs of the hearing before Ameer Ali, J. and all reserved costs will be dealt with by the Judge who deals with the suit on remand.

Gentle, J.:— This is an appeal by the adult and some of the infant Defendants against the judgment and decree of Ameer Ali, J., dated 29th April, 1942, decreeing the Plaintiff's claim for the amount of royalties due under a mining lease, and holding that the defence raised in the written statement, that the lease had been surrendered, failed as it was barred by res judicata. The 15th, 16th and 17th Defendants are other minors, they are Respondents and arc separately represented but support the appeal. It is convenient hereafter to refer to all the Defendants in the suit as the Appellants and to the Plaintiff as the Respondent. The sole question, as will be explained later, in this appeal is whether the finding of res judicata by the learned Judge was correct. The remaining issues in the suit were not tried and no evidence was called.

60. The Appellants are the heirs and legal representatives of Ramniranjandas Murarka (hereinafter called “Murarka”) who died on 28th October, 1930. The Respondent's claim is made as the manager of the estate of Popat Velji Rajdas (hereinafter called “Popat”) who died on 9th November, 1923, leaving two widows named, Puri Bai Jetha Bai and Mani Bai Nathu Bhai (hereinafter called “the widows”), his father Velji Mulji, and a brother Joyram Velji, surviving him. He left no issue.

61. During the life-time of the two above named deceased persons, by pottah and kabuliyat dated 6th August, 1920, Popat granted to Murarka a lease of 465 bighas of coal land for the term of 994 years, Murarka to pay a royalty of as. 6 per ton on all coal raised and despatched, the amount of royalty not to be less than Rs. 9,000 per annum. By cl. 9, Murarka, at any time, was competent to surrender the lease on any reasonable ground upon giving to Popat notice in writing by post under registered cover at least one year previously and by clearing the amount of commission or minimum royalty due or any amount due up to the time of surrender.

62. At the time the Appellants allege that notice, pursuant to cl. 9, was given, on 25th July, 1932, of the intention to surrender the lease on 31st July, 1933, there were grounds permitting a surrender.

63. After the death of Popat, a petition was presented, on 18th July, 1924, under sec. 108 of the Presidency Towns Insolvency Act by the Respondent (Case No. 157 of 1924), who was a creditor of the estate, upon which an order was made, on 21st July, 1924, for adjudication of the estate and administration of it in insolvency. By sec. 109 the estate thereupon vested in the Official Assignee of Calcutta.

64. On 3rd August, 1924, (13 days after the order for adjudication) the widows, as legal representatives of Popat, instituted a suit in this Court (No. 2156 of 1924) against Popat's father (Velji Mulji), alleging he was in wrongful possession of the estate and that they were creditors of Popat's estate for maintenance. They claimed, on their own and on behalf of all creditors, administration of the estate under the directions of the Court and, if necessary, for the appointment of a Receiver to take charge of it. On 23rd September, 1924, the Respondent and one Sewchandroy Khemka, (who was another creditor), were appointed administraotrs. On 24th November, 1924, the Respondent and Khemka were made party Defendants and on the same day a preliminary decree was passed by consent of the parties for the usual accounts and enquiries and it was directed that Popat's estate be applied in payment of his debts in due course of administration, but a Receiver was not appointed. On 15th May, 1925, the Respondent and Khemka (to whom further reference is unnecessary) were discharged as administrators and the Official Receiver was appointed the Manager of the estate and to be at liberty out of the income to pay to the widows all arrears of maintenance and future maintenance. On 11th March, 1927, the Official Receiver was discharged as Receiver and Manager (the order incorrectly recites he was appointed Receiver as well as Manager) and the Respondent was appointed the Manager of the properties belonging to the estate in place of the Official Receiver. On 8th August, 1928, as Manager of the estate, the Respondent filed a suit (No. 1736 of 1928) against the Appellants for arrears of royalty, which was decreed on 4th August, 1931. This decree was set aside on appeal (No. 82 of 1931) on 15th April, 1932, on the ground that the Respondent had no right to sue for and recover the royalties since there had been an adjudication under sec. 108 of the Presidency Towns Insolvency Act on 21st July, 1924, (before the suit No. 2156 of 1924 was filed and before the Respondent was appointed the Manager of the estate) by which the estate vested in the Official Assignee.

65. On 5th July, 1932, the adjudication order was vacated, the Official Assignee was declared to be divested of the estate and it was ordered that the administration should continue as if no such order had been passed.

66. In Appeal No. 81 of 1932 the Appellate Court (Rankin, C.J and Costello, J.) on 15th February, 1933, considered the position relative to the estate and were of opinion that the Court had made a general administration order with regard to it and that the estate was being administered under the orders of this Court. This was by the preliminary decree in Suit No. 2156 of 1924 brought by the widows and in which, by order dated 11th March, 1927, the Respondent was appointed the manager of the estate. It is beyond doubt that at all material times, the Court was administering Popat's estate, the Respondent was the manager (he was not appointed the Receiver) with limited powers; and the order of 11th March, 1937, did not confer power to institute suits but further authority would be required from the Court to enable him to sue on behalf of and for the estate.

67. The Respondent instituted Suit No. 1571 of 1933 against the Appellants claiming royalties, up to 15th July, under the mining lease. It was referred to arbitration, the arbitrator awarded the Respondent Rs. 17,250 including costs upon which a decree was passed on 31st July, 1934. This suit was instituted after the failure of Suit No. 1736 of 1928 in the Appellate Court. The Respondent obtained leave to file this suit from the Court.

68. On 25th July, 1932, pursuant to cl. 9 of the mining lease, the Appellants purported to give written notice of surrender on 31st July, 1933 to the widows, Popat's brother (Joyram), the Respondent and the Official Assignee. On 1st August, 1933, the Appellants instituted a suit in the Court of the Subordinate Judge of Dhanbad (No. 28 of 1933) against the two widows, Joyram and the Respondent claiming a declaration that the surrender of the lease was valid. On 13th October, 1936, the suit was dismissed. The Appellants preferred an appeal against the dismissal of the suit to the High Court at Patna (Appeal No. 27 of 1938) which received disposal on 21st February, 1941. The appeal was withdrawn against the Respondent and Joyram, the widows filed a petition admitting that the surrender to them was a valid surrender as from the 1st August, 1933; and, by consent, the appeal with respect to the widows was allowed.

69. In the present suit and appeal the Respondent relies upon the decrees in the Dhanbad Court and in Suit No. 1571 of 1933 in this Court, as constituting res judicata of the subject-matter of the defence raised by the Appellants.

70. Between the dates of the decree in the Dhanbad Court and the disposal of the appeal from it to the High Court at Patna, the Respondent filed the present suit on 1st May, 1939, claiming under the mining lease, Rs. 64,020-12-0, for royalties from 1st May, 1933 to 30th April, 1939. In paragraph 2 of their written statement, the Appellants allege that the lease was surrendered in July, 1933, by: (a) one year's notice in writing being given to the Respondent, the heirs of Popat and the Official Assignee; (b) offering and tendering to the Respondent, before the date of surrender, the amount due under the lease; (c) depositing into the Dhanbad Court on 1st August, 1933, the sum of Rs. 35,000 which was more than sufficient to meet the dues payable under the lease; and (d) relinquishing and vacating the premises on 31st July, 1933. By his additional written statement, the Respondent pleads that the subject-matter of the Appellant's plea is res judicata and the defence raised is thereby barred.

71. It is now convenient shortly to give the substance of the material allegations and facts in the Dhanbad suit. The mining property is situated within the jurisdiction of the Dhanbad Court in Bihar. The Appellants' notice to surrender the lease, dated 25th July, 1933, specified the surrender date as 31st July, 1933, i.e, more than one year after the date of the notice. On 30th July, 1933, their attorneys wrote to the Respondent, as manager, that about Rs. 18,000 was the amount of the dues outstanding in respect of the lease but to safe-guard the Appellants, a sum of Rs. 35,000 was unconditionally offered and would be tendered to the Respondent. On 31st July, 1933, a representative of the Appellants took Rs. 35,000 to Dhanbad and unsuccessfully tried to find the Respondent to make a tender of this amount. It was suggested he deliberately avoided the person sent to make the tender. Having previously obtained leave of this Court to sue the Respondent as the manager of the estate, on 1st August, 1933, the day after the alleged attempt to find the Respondent to make the tender to him, the Appellants instituted the suit in the Dhanbad Court against the widows, Popat's surviving brother, and the Respondent claiming a declaration that the mining lease had been surrendered and relying upon the notices given on 25th July, 1932, and an offer and a tender of Rs. 35,000 as sufficient to discharge all dues under the lease.

72. On 13th October, 1936, the learned Subordinate Judge found that:

(1) Notice had not been given to the Respondent as required by sec. 80, Civil Procedure Code.

(2) Rs. 35,000 was more than a sufficient sum to discharge all dues under the lease.

(3) The notice of surrender was served upon the Respondent but had not been served upon the widows and Popat's brother.

(4) The Respondent alone was entitled to receive the dues under the lease.

(5) The offer to pay Rs. 35,000 was conditional and could not therefore be accepted save subject to the conditions.

(6) No tender of Rs. 35,000 was made to the Respondent.

(7) The lease could only be surrendered by means of a registered document.

(8) There were grounds justifying surrender of the lease.

73. The suit was thereupon dismissed, the learned Judge holding that the notices were bad as the dues were not offered, tendered or paid, and the surrender was required to be made by a registered document and, consequently, the lease had not been surrendered. It is not necessary to refer to the subsequent appeal to the High Court at Patna since, if the findings in the suit in the Dhanbad Court do not operate as res judicata in the present suit, the position is unaffected by the result of the appeal.

74. In the judgment against which this appeal is preferred Ameer Ali, J., held that the decision in the Dhanbad Court decided the same issues which arise for decision in the present suit and, consequently, the Appellants' defence to the claims was barred by res judicata. He expressed the opinion that the Respondent was the proper person to sue and also the proper person to accept surrender of the lease. On behalf of the Respondent the latter position is disputed on the ground that, since the Court is administering the estate, its previous sanction should be obtained before a surrender could either be made or accepted and none was obtained with respect to the alleged surrender by the Appellants in or about July, 1933. It was, however, conceded that if the Respondent was the right person to accept surrender and search was made to find him on 31st July, 1933, to tender the dues outstanding under the mining lease on that date and he could not be found by the Appellants, then, payment of the dues up to 31st July together with any additional dues thereafter accrued up to the date of subsequent tender or payment, would be fulfilment of the term in cl. 9 of the mining lease requiring all dues to be cleared at the time of surrender.

75. The issues in the present suit are:—

[Omitted being the same as in the judgment of McNair, J.]

76. The plea of res judicata is solely confined to issue 1 (i), (ii) (a) and (b). Whilst issue 2 is included in Group A, it does not relate to this plea but it would seem to raise the question whether, in the absence of a surrender to, or with leave of, the administration Court (this Court), there is any other defence to the suit. This issue involves the factum and validity of the surrender pleaded in para. 2 of the written statement which require decision in issues 3, 4 and 5 in Group B.

77. On behalf of the Respondent it was contended that: Ameer Ali, J., decided Issue 2 in his favour: his decision was the correct one; and that the decision upon issues 1 and 2 disposed of the suit since, by the finding of res judicata on Issue 1 the Appellants are debarred from ascertaining the factum and validity of the alleged surrender raised in Issues 3, 4 and 5.

78. This contention mainly rests upon a reference in the judgment of Ameer Ali, J. to “the issues in Group A” and that his observations immediately preceding this reference founds the issues in this group and also, later in the judgment that the learned Judge held on “the first set of issues” in favour of the Plaintiff (Respondent).

79. Immediately preceding the reference to “the issues in Group A” the judgment deals with law suits in connection with the mining lease, including No. 1571 of 1933 and the suit in the Dhanbad Court, and adds that it is on the effect of the judgment in the latter suit that the decision of the issue of res judicata turns. Ameer Ali, J., next deals with the appeal to the High Court at Patna and then says the Defendants (Appellants) had raised, or rely exclusively upon the same defence of surrender based upon the same circumstances as were alleged, established and discussed in the Dhanbad suit. He then adds “This founds the issues in Group A” and concludes that he was pursuaded by Counsel for the Plaintiff to give his decision without proceeding to the trial of the whole suit.

80. It is perfectly clear that, although he mentioned the issues in Group A, the learned Judge was referring solely to the issues of res judicata and to nothing else. The later reference to the first set of issues, upon which he held in the Plaintiff's favour, must relate to issue 1, which contains a number of sub-issues and together forms the first set. At the commencement of the judgment, in para. 2, it is manifest that the learned Judge intended to deal solely with the plea of res judicata. Thereafter any observations which were made and which might have reference to issue 2, were solely made incidental to and in connection with the question of res judicata.

81. The minutes, dated 20th January, 1943, of the proceedings before the learned trial Judge make the matter perfectly clear, if clarity is required. It is recorded thus

“The Court: I am prepared to take the issue of res judicata for pre point (?) predecision and if the issue is decided in Plaintiff's favour I will not try the issues in Group B. The issues drawn by Mr. Khaitan (learned Counsel for the Plaintiff) shall remain on record”.

82. It is manifest that if the question of the alleged surrender, the subject of the issues in Group B, was held to be res judicata, trial of those issues would be unnecessary.

83. In my opinion the only question which was tried related solely to the plea of res judicata which was the subject of the set of issues in issue 1.

84. Although it is the 2nd sub-issue, it is first convenient to deal with the contention that the defence is barred by res judicata, on the question of the Respondents right to sue; the decrees in suit No. 1571 of 1933 and the judgment and decree in the Dhanbad suit.

85. The order dated 4th March, 1927, appointing the Respondent as manager of the estate did not confer upon him any powers to bring suits or to sue. Before filing Suit No. 1571 of 1933, in which a decree for an amount of royalties was obtained against the Appellants, he was given leave of Court to institute that suit, but nothing more. Subsequently he obtained authority to file the present suit by order dated 28th April, 1939. Before commencing the Dhanbad suit the Appellants obtained leave to sue the Respondent in that suit. The Respondent's rights and power to sue, in Suit No. 1571 of 1933 and in the present suit, were given by separate orders of Court, each order relating solely to the suit in respect of which each order was made, and the authority to sue in the 1933 suit did not extend nor empower him to sue in the present suit. His right to sue in the present suit is separate and apart from the right in the earlier suit. That being the position any decision in the 1933 suit, regarding the Respondent's right to sue in that suit, cannot be res judicata with respect to his right to sue in the present proceedings. In the Dhanbad suit the Appellants obtained leave to sue the Respondent in that suit. The order giving such leave did not empower the Respondent to sue but its effect was limited to the extent indicated above.

86. In my view the question of the Respondent's right to sue in the present suit is not res judicata by reason of the decision either in the 1933 suit brought by the Respondent against the Appellants in the Dhanbad suit in which the Appellants were Plaintiffs and the Respondent was one of the Defendants.

87. In the order dated 28th April, 1939, giving leave to the Respondent to file the present suit, such leave was given to him as “Receiver” in the administration suit. He is not the Receiver. The original and final drafts of this order were the subject of criticism and on behalf of the Appellants it was argued that, since the Respondent is not the Receiver but only the manager, leave given to him as Receiver is ineffective. These are matters with which this appeal is not concerned and they remain open, no opinion, one way or the other, is expressed with regard to them.

88. Having disposed of the foregoing it is now convenient to deal with the substantial question whether the defence of surrender is open to the Appellants or is barred by the decision against them in the Dhanbad suit and is res judicata between the parties. No question arises that the subject-matter regarding surrender of the lease in this and in the Dhanbad suits, is the same and arises between the same parties litigating under the same title.

89. Sec. 80 of the Civil Procedure Code provides that no suit shall be instituted against a public officer until the expiration of two months after notice in writing has been given to him stating the cause of action, the name, description and place of residence of the Plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been delivered. Or. 7, r. 11 provides that the plaint shall be rejected (d) where the suit appears from the statement in the plaint to be barred by any law.

90. Notice was not given, pursuant to the section, by the Appellants (as Plaintiffs) to the Respondent (as Defendant) who was sued as the manager of the estate, prior to the institution of the Dhanbad suit and the plaint in that suit did not contain a statement that such notice had been delivered. In para. 6 of the Respondent's written statement the failure to give such notice was pleaded as a bar.

91. Sec. 2(17) of the Code defines “public officer” as (d) every officer of a Court of Justice whose duty it is as such officer to take charge or dispose of any property and every person especially authorised by a Court of Justice to perform any of such duties. In Jagadish Chandra D.D Deb v. Debendraprosad Bagchi it was held by an Appellate Bench of this Court that a Receiver appointed under Or. 40, r. 1 of the Code is a public officer.

92. An order of this Court dated 11th March, 1927, appointed the Respondent as the manager of all the properties (which included the coal mine the subject of the mining lease) of the estate and he was ordered to pay in all monies to be collected by him as such manager to the credit of a current account to be opened by him with the Imperial Bank of India and hold the same less all outgoings payable in respect of and properly chargeable to the estate. Thus he was a person who was specially authorised by a Court of Justice to perform the duty of taking charge and disposing of the property of the estate, namely the money belonging to it. He was therefore a public officer as defined in sec. 2(17) of the Code.

93. Issue No. 6 in the Dhanbad suit reads

“Can the Plaintiffs (present Appellants) institute this suit without serving a notice under see. 80 C.P.C, on Defendant No. 4 (present Respondent)”.

94. In Bhagchand Dagadusa v. Secretary of State for India, their Lordships of the Judicial Committee held that notice under sec. 80 is required even when an injunction is claimed and, at p. 358, observed that the Plaintiffs could get no relief by declaration or otherwise.

95. A declaration was sought in the Dhanbad suit. In his judgment the learned Subordinate Judge first dealt with the issue as to notice and found, as undoubtedly was the case, that notice is required to be given before suit to the Respondent and that it had not been given to him. It was held that the want of notice was fatal to the Plaintiff's case. Having expressed his conclusions and findings regarding the necessity for notice to be given under sec. 80 the learned Judge then proceeded to deal with, and to express his findings upon, the issues and matters relating to the alleged surrender of the lease.

96. The position now requiring examination relates to the findings upon other issues in a suit in respect of which the statutory notice under sec. 80 is required and has not been given and the plaint does not contain an averment that notice has been delivered and, under Or. 7, r. 11, the plaint must be rejected in consequence of the absence of notice and the averment. It does not appear from the judgment, and it must be assumed, that the Appellants raised no objection to the learned Subordinate Judge dealing with the issues relating to surrender although he came to the conclusion that want of notice was fatal to the maintainability of the suit.

97. It was held in Bachchu Singh v. Secretary of State for India that the language of sec. 424 (now sec. 80, C.P.C) is imperative and when notice before suit has not been given the Court's only course is to reject the plaint under sec. 54(c) (now Or. 7, r. 11) of the Code. At page 193 of the judgment it is pointed out that the words of the statute “no suit shall be instituted” could not be found to express more clearly the duty of the Plaintiff to give the prescribed notice as a condition precedent to instituting the suit and failing compliance with the section the plaint ought to be rejected.

98. On behalf of the Respondent, reliance was placed upon Peary Mohun Mukherjee v. Ambica Churn Bandopadhya. The Defendant was a person to whom sec. 363 of the Bengal Municipal Act applied. This section contains provisions corresponding to sec. 80, Civil Procedure Code save that an averment is not required in the plaint that notice before suit has been given. In a previous suit the Plaintiff claimed damages from the Defendant for the non-removal of filth. The Defendant succeeded on the plea of absence of notice and it was also held that he was not liable to remove filth from the Plaintiff's property. Prior to the institution of a second suit the statutory notice was given and the same relief was sought in respect of a subsequent period. It was held that the Defendant's liability to remove filth was decided in the first suit and the matter in issue relating to it was res judicata between the parties. In his judgment, Maclean, C.J, rejected the contention that since the earlier suit failed for want of the statutory notice it became unnecessary to go into the other issues and therefore the merits could not be regarded as so gone into in the later suit. At p. 902 the learned Chief Justice observed that with knowledge and consent of both litigating parties the question was gone into, was directly and substantially in issue and was heard and finally decided; the decision on the merits formed an additional ground for the dismissal of the suit; and both sides invited the decision; in consequence the question of the Defendant's liability to the Plaintiff which had been decided in the former suit was res judicata.

99. Since the last-mentioned authority was decided in 1897, the Judicial Committee has considered the effect, when in a defective suit, findings have been given upon other issues. It is now necessary to examine these decisions and to see how High Courts in India have construed and applied them.

100. In Midnapur Zamindari Coy., Ltd. v. Naresh Narayan Roy (decided in 1920) the Plaintiff claimed possession of some land to which the Defendant pleaded he had some occupancy right and that the suit was premature; the suit was held to be premature and that the Defendant had no occupancy right. In a subsequent suit the Plaintiff again claimed for possession of the same land which was met with the same plea of occupancy right by the Defendant. It was held that the issue of occupancy right was not res judicata since the Defendant had succeeded on the plea of prematurity in the first suit. Their Lordships of the Privy Council observed, at p. 85, that they

“do not consider that this (the finding regarding the absence of occupancy right) will found an actual plea of res judicata, for the Defendants, having succeeded on the other plea, had no occasion to go further as to the finding against them”.

101. Their Lordships added

“but it is a finding of a Court which was dealing with the facts nearer to their ken than the facts are to the Board now, and it certainly creates a paramount duty on the Appellants to displace the finding, a duty which they have not been able to perform”.

102. From the latter observation it would seem that whilst the finding in the earlier suit was not res judicata, a supreme responsibility was cast upon the party against whom the finding was pronounced to displace it and this had not been done by the evidence in the later suit.

103. The High Court at Madras followed the last-mentioned authority in Ramaswami Reddi v. Thalawasal Marudai Reddi, In a previous suit for ejectment the Defendants pleaded occupancy right, upon which they failed, and that notice to quit had not been given, upon which they succeeded. Subsequently, after notice to quit had been given, the Plaintiffs claimed ejectment in a second suit, to which the Defendants pleaded the same occupancy right. It was held that the question of occupancy right was not res judicata by reason of the earlier decision as there was no necessity to find on the question of permanent occupancy for, even if the Court had assumed the Defendant had no such right, the result would have been the same; a tenancy from year to year, (alleged by the Plaintiff) would require a notice to quit to put an end to it.

104. The effect of the absence of notice, under sec. 80, C.P.C, before suit, again came before the Judicial Committee in 1927. In Bhagchand Dagadusa v. Secretary of State for India, their Lordships held (as already mentioned) that the section applies to all suits. In the judgment of the Board, delivered by Viscount Sumner, it is observed, at p. 357 that “Sec. 80 is express, explicit and mandatory and it admits of no implications or exceptions” and at p. 358, that the consequence of the Plaintiff's failure to comply with the section “is as if their action had never been brought. It was unsustainable in limine.”

105. In Jagadishchandra Deo Dhabal v. Debendraprosad Bagchi an Appellate Bench of this Court considered the last-mentioned decision of the Privy Council. Notice under the section was not given to a Receiver appointed by the Court (who was the Defendant in the suit) and the plaint contained no averment that notice had been given. At p. 853 of the judgment it is stated that it was the duty of the Court to look into the plaint and when, on the face of it, there was no averment as to service of notice, the Court below should have held that the suit was one which could not be instituted and should have rejected the plaint instead of going on with the suit. The decree, from which the appeal was made, was varied by an order being made that the plaint be rejected.

106. In Hafiz Mohammad Fateh Nasib v. Swarup Chand Hukum Chand an Appellate Bench of this Court considered the question of res judicata. At pp. 450 and 451 Edgley, J., with whom Biswas, J., agreed, stated that the decision in Peary Mohan Mukerjee v. Ambica Churn Bandopadhya had been followed by the High Courts at Calcutta and Madras in several instances but had not been adopted in another case in this Court and by the High Court at Allahabad (the authorities to which reference was made are given but are not here required to be stated) with regard to findings which are incidental and subsidiary to the main question in a suit. The opinion was expressed that the view, (that all findings are res judicata) which had been usually taken in this Court is more consistent with reason and authority. Later, at p. 459, it is observed that, in order to see whether the doctrine of res judicata may be invoked, it is necessary to consider five points of which (iv) reads “was it necessary to decide that conflict in order to give the Plaintiff the relief that he claimed.” Further, in the judgment, at p. 461 it was held, in that case, the point in question was essential. In the general observations, it does not seem that, with every respect, the effect of the decision of the Privy Council in the Midnapur case was fully considered and the Bhagchand case does not appear to have been cited to the Court.

107. The two decisions by the Judicial Committee, above mentioned, were given several years after Peary Mohun Mukerjee's case. The substance of these two cases is: a finding upon an issue which has no occasion to be decided will not found a plea of res judicata although it will create a paramount duty on the party against whom, it is given, to displace it; sec. 80 is mandatory and when the notice which it prescribes is not given before a suit is instituted the consequence is as if the suit had never been brought and it is unsustainable in limine.

108. In Mulla's Code of Civil Procedure it is stated, at p. 80, that a matter directly and substantially in issue cannot be said to have been heard and finally decided unless the finding on the issue was necessary in the determination of the suit. And at p. 303, that sec. 80 debars a Court from entertaining a suit instituted without compliance with its provisions. The above quotations summarise the two decisions of their Lordships of the Privy Council. The words in sec. 80, “no suit shall be instituted” are emphatic and unambiguous and, in effect, forbid a Court to entertain a suit when notice is required and has not been given. When notice is not given the Court has no course but to reject the plaint. It cannot try the suit and its position is analogous to having no jurisdiction to do so. The observation of Lord Sumner, in the judgment of the Privy Council in the Bhagchand Dagadusa case, that the consequence of notice not being given is as if no action had ever been brought, makes manifest the duty and position of the Court; it must reject the plaint; there is not a properly constituted suit to be tried; the Court cannot adjudicate upon the issues arising in it; the suit must be dismissed; and it is unnecessary for the Court to hear and determine the other issues and to find in the Defendant's favour upon none or more of them in order to decide upon a dismissal. Indeed, the Court cannot adjudicate upon the other issues since there is not a suit before it in which it can give an authoritative adjudication. If, instead of rejecting the plaint after it finds the suit is defective on account of non-compliance with sec. 80, the Court proceeds to express findings and conclusions upon the issues arising on the pleadings, its findings are not res judicata between the parties and amount to no more than obiter dicta.

109. In the Midnapur case, the first suit was premature and failed on that account and the finding upon the issue of occupancy right was held not to be res judicata since the Court, having come to the conclusion that the suit must fail on the plea that it was premature, had no occasion to go any further. The position with respect to a defective suit for want of notice under sec. 80 is, a fortiori, one in which the Court's findings upon the issues are unnecessary to decide the determination of the suit. In the Dhanbad suit, when it was found that there had not been compliance with sec. 80, the plaint should have been rejected; it was unsustainable in limine, and the consequence being as if no suit had been instituted (vide the Bhagchand case). It was unnecessary to hear and determine the issues regarding notice to surrender the lease, tender, etc., and, indeed, there was no suit before the Court in which findings upon those issues could be authoritatively expressed. Those findings amount, at the most, to obiter and are not res judicata between the parties. In so far as the above view may be at variance with the decision of this Court in Hafiz Mohammad Fateh Nasik v. Swarup Chand Hukum Chand, I respectfully beg to differ from it. Since the Midnapur and Bhagchand cases the decision in Peary Mohun Mukerjee's case cannot be considered to be good law.

110. On behalf of the Respondent it was sought to distinguish the pronouncements of the Judicial Committee in the Midnapur and The Bhagchand cases from the Dhanbad suit, relying upon Sri Sri Krishna Chandra Gajapati Narayana Deo Maharajaluigaru v. Challa Ramana(8).

111. Issues were framed and decided upon matters not properly raised in the plaint. At p. 367 their Lordships of the Judicial Committee observed that both parties had, without contest, chosen to join issue upon those points and they saw no reason why those matters in dispute should not be res judicata between them. That suit was properly constituted as to which no objection lay against it. In such case the Court's findings upon issues which either were agreed between the parties or to which no objection was raised could properly be given, whereas the Dhanbad suit was one which could not be instituted and, in effect, the Court had no authority to try any issue save that upon the competency of the suit and it should have rejected the plaint in limine. The above authority does not affect the present suit and appeal.

112. I agree the appeal should be allowed with costs and the decree set aside; the suit be remanded for trial upon all issues, save issue No. 1 which relates to the plea of res judicata, and the costs of the hearing before Ameer Ali, J., will be dealt with by the learned Judge at the trial. Certified for two Counsel.

113. I desire to add that other contentions were argued by the learned Advocate-General for the Appellants, and Mr. Ghosh for the infant Respondents in support of the appeal, and by Mr. S.N Banerjee and Mr. K.P Khaitan for the Respondent upholding the findings of the learned trial Judge. Having come to the conclusion the appeal should succeed for the reasons given it is not necessary to consider the further contentions and for this reason alone I have not dealt with the other able arguments of learned Counsel.

Solicitors: Mitra & Mitra for the Appellants; P.C Ghosh & Co. and B.M Bagaria for the Respondents.

C.C