BLSHNU PRIYA CHOWDHURANI Vs. BHABA SUNDARL DEBYA
BLSHNU PRIYA CHOWDHURANI
BHABA SUNDARL DEBYA
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(1.) Two questions have been raised in this appeal: First, whether the Lower Appellate Court was right in holding that the stipulation in the kabuliat relied upon by the plaintiff for the delivery of certain articles to the plaintiff's landlord by the defendants, or in default for compensating the plaintiff for any damage she might sustain, was not in the nature of a stipulation for paying an abwab; and second, whether the Court of Appeal below was right in holding that the issue whether the aforesaid stipulation was legally enforceable or not was res judicata, and concluded in favour of the plaintiff by the decision in a previous suit, namely, suit No. 492 of 1868 of the Court of the Muneif of Goas.
(2.) If the second question is answered in the affirmative, the first question will not arise, as it will not be open to the Court to consider it. We shall, therefore, deal with the second question first.
(3.) It is not disputed that the former suit was one between the same parties, and the question now arising for determination was directly in issue and was expressly determined in favour of the plaintiff in the former suit. But the learned Counsel for the defendant-appellants contends that notwithstanding that circumstance, the decision in the former suit cannot operate as res judicata for three reasons: First, because the Court of the Munsif of Goas was not competent in 1868, when the former suit was brought, to entertain a suit for rent like the present, and the decision of that Court was not a decision of a Court of competent jurisdiction; secondly, because the question raised is a question of law, and no previous decision on such a question could operate as res judicata; and thirdly, because there has been a change in the law since the decision in the previous suit by the enactment of Secs.23 and 24 of the Indian Contract Act. We shall examine these three reasons separately.;
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