Maclean, C.J:— The suit, out of which this appeal arises, appears to have been conducted before the Munsif in rather a curious way. Both parties went into evidence on the merits, and having done that, the learned Munsif decided that the case was res judicata by reason of some previous decision in a previous suit, discarding, apparently, the evidence altogether. The case came before the learned Subordinate Judge, and he held that the matter was not res judicata, and what we have to decide is, whether or not, he was right. I think he was right.
The action is one for the recovery of rent. It is contended on the part of the Appellant who is the Plaintiff that by reason of the fact that there was a previous suit by the same Plaintiff against the same Defendant for rent in 1871, and, subsequently, as I understand, another similar suit for rent in 1886, in both of which suits judgment was given for the Plaintiff the matter is now concluded, and that the Defendant is not at liberty to go into evidence to show that the rent claimed is not due or to raise any other defence which he may have.
I cannot think that because there has been a previous suit for rent by the same landlord against the same tenant, that the latter is prevented in a subsequent suit for rent form raising any defence he may have. There may be many defences open to him, and the mere fact of the previous finding in the previous suit, that the rent then claimed was due, cannot, I think, be taken as res judicata against the Defendant in a subsequent suit, for an amount of rent subsequently accrued due to the Plaintiff. If that were so, I think the result would in many cases be startling. The case of Hurry Behari Bhagat v. Pargun Ahir appears to me to be consonant with this view, namely, that the previous decision in a suit by a landlord for rent, does not operate as res judicata, and that the Court must determine upon the evidence adduced whether the rent claimed in the particular suit, under adjudication, is or is not due. On these grounds I think the appeal fails and must be dismissed with costs.
Banerjee, J.:— I am entirely of the same opinion. I adhere to the view taken in the case of Nil Madhab Sarkar v. Brojo Nath Singha, for the reasons given in that case. It is not shown here that in the judgment in the former suit now relied upon, any question was determined as to what the rent payable by the Defendant for future years was to be.
P.N.S
Appeal dismissed.