Sir W. Comer Petheram, C.J:— We are all agreed that the District Judge is wrong in holding that there is res judicata as regards the whole of the suit. The difficulty has arisen from a misconception as to what was in issue in the former suit and what was alleged in evidence in that suit. The only issue in that issue was, whether the two bonds sued on had been satisfied. To prove this the defendant adduced evidence showing that all the bonds had been satisfied. The Munsif found that the defendant had not paid anything. But the only question which the Munsif had to decide was, whether the [252] two bonds sued on in his Court had been paid. The answer to the reference should therefore be that the suit, as regards those bonds, is res judicata, but not as regards the other bonds.
Oldfield and Brodhurst, JJ.:— concurred.
Mahmood, J.:— The point raised by the argument of the learned counsel for the appellant is simple, and I am anxious to explain that I should not have been a party to the reference had I not thought that his contention before the Divisional Bench was that the plea of res judicata was not applicable in respect of any of the bonds. The question now seems to be confined to the bonds which were not the subject of the former suit, and in determining the question I only wish to add a few words to what the learned Chief Justice has already said. The rule of res judicata is regulated in this country by the language of s. 13 of the Civil Procedure Code. The body of that section is thus worded:—“No Court shall try any suit or issue in which the matter directly and substantially in issue has been 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 of jurisdiction competent to try such subsequent suit, or the suit in which such issue has been subsequently raised, and has been beard and finally decided by such Court.” There can be no doubt that all the bonds are subject of dispute in the present suit, and it is obvious that the Munsif who disposed of the former suit is not “a Court of jurisdiction competent to try such subsequent suit or the suit in which such issue has been subsequently raised,” within the meaning of the section. It seems to me, therefore, that if the word “suit” were taken literally, it might with some plausibility be contended that there is no res judicata in respect of any of the bonds. In my opinion the word “suit,” as it occurs in s. 13, must be understood to mean such a matter as might have formed the subject of a separate suit independently of the special provisions of the Civil Procedure Code, such as s. 45, which 1 enables the plaintiff to unite several causes of action in one and the same suit. Adopting this interpretation, it is clear that the two bonds which were the subject of the former suit cannot be allowed to form the subject of litigation again; and the circumstance-[253] that the plaintiff has joined them in the present litigation will not enable him to obviate the plea of res judicata.
As to the rest of the case, that, is the other two bonds which were not the subject-matter of the former suit in the Munsif's Court, the answer is clear. I hold that those bonds did not in that suit constitute a “matter directly and substantially in issue,” within the meaning of s. 13 of the Code, although they were discussed as a matter of evidence; and that even if they were “directly and substantially in issue,” I should say that the finding of the Munsif would not support the plea of res judicata, because the Munsif was not a Court of jurisdiction competent to try the present suit in which the plea has been raised.
I am, therefore, of opinion that the present suit, so far as it relates to the two bonds which formed the subject of adjudication in the former suit, is barred by the rule of res judicata, and the rest of it is not so barred.
Duthoit, J.:— concurred in holding that the suit was res judicata only in respect of the bonds on which the former suit was brought.