We think this appeal might be disposed or on the ground that, as found by the City Civil Court Judge, the present suit was adjourned from time to time with the consent of both sides to await the disposal of the suit in the High Court. In this state of things it seems to us that it is not now open to the plaintiff to seek to go behind the judgment of the High Court.
Apart from this, however, we are clearly of opinion that the plaintiff's claim for an injunction in the form asked for in the plaint is res judicata. In the High Court suit the present plaintiff was the defendant. The first issue in the suit was whether the then plaintiffs had a prescriptive right to certain lights which they claimed as ancient lights. It was held by Boddam, J., and by the Appellate Court that they had this right (the decree of the Appellate Court modifying the decree of Boddam, J., as regards three out of the seven windows) and that the agreement of 29th March, 1878, did not operate as a waiver or surrender of this prescriptive right.
The decisions of the Courts in this country as to how far a decision based on a mistake of law operates as res judicata are not altogether uniform, but it is not necessary to consider these decisions because, in our opinion, the judgment in the High Court suit was not a decision on a point at law. The decision was that the plaintiffs in the suit of 1898 did not intend by the agreement of 1878 to abandon or surrender their right to certain ancient lights. This is a decision on a question of fact, not on a point of law.
The argument addressed to us by Mr. Brown that the legal effect of the agreement of 1878 was to extinguish any prescriptive right which the plaintiffs in the High Court suit had acquired was not put forward on behalf of the defendant either in the Original Court or in the Appellate Court. That question therefore is also res judicata by virtue of Explanation II to section 13 of the Code of Civil Procedure.
It has also been argued on behalf of the appellant that the plaintiff's claim is not res judicata because her suit was instituted before the High Court suit, although the matter in dispute was adjudicated upon in the High Court suit before there was any adjudication upon the question in the present suit. As regards this point we agree with the statement of the law in the judgment of the Allahabad High Court (Balkishan v. Kishan Lal) “the doctrine so far as it relates to prohibiting the re-trial of an issue must refer not to the date of the commencement of the litigation but to the time when the Judge is called upon to decide the issue.”
We think the plaintiff was only entitled to an injunction in the terms as granted by the City Civil Court Judge.
This appeal is dismissed with costs.
Messrs Branson & Branson — Attorneys for appellant.
Messrs Short & Roll — Attorneys for respondent.