M.N. Roy, J. - (1.) The facts and points involved in this application for a Rule which was affirmed on 20th April 1981 by Satya Ranjan Ghosh, petitioner No. 1 were the same as in or similar to the facts and points involved in the application dated 14th March 1974, affirmed by Shri Balaram Ghosh, petitioner No. 11, in that Rule which was numbered as Civil Rule No. 1433: (W) of 1974 and which had to be discharged on 5th October 1977, as none appeared in support of the same even of the second call.
(2.) In fact, Mr. Banerjee, appearing in support of the present application for a Rule, without placing the application on merits initially contended that earlier discharge of the Rule, with out going into the merits of the case, would not be a bar in entertaining the present application. If Mr. Banerjee is right and justified in such submissions in the facts of this case, then a Rule will certainly have to be issued as there was a prima facie case established, on the self same facts, at the time of the issue of the first Rule as mentioned above and which facts have not admittedly been dealt with or considered on merits while making the order. It should also be noted that the petitions in the two applications, excepting the additional statement made in the present one regarding the ex parte rejection of the earlier Rule and the circumstances relating to the same or the fact of such rejection, would not be a bar were the same.
(3.) Mr. Banerjee, appearing in support of the present application, relied firstly on the determinations in the case of Shedun Singh v. Duriyao A.I.R. 1965 SC 1332 . There the Supreme Court while determining on section 11 of the Code of Civil Procedure have observed that it is the Court which decides the former suit whose jurisdiction to try the subsequent suit has to be considered and not the Court in which the former suit may have been filed. In order that a matter may be said to have been heard and finally decided, the decision of the former suit must have been on the merits. Where, for example, the former suit was dismissed by the Trial Court for want of jurisdiction, as for default of the plaintiff's appearance or on the ground of non joinder of parties or misjoinder of parties or multifariousness or on the ground that the suit was badly framed or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificates when the same was required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was under valued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal, if any, the decision not being on the merits would not be res judicata in a subsequent suit. It has also been observed in that case that where the trial court has decided two suits having common issues on merits and there are two appeals therefrom on any one of them is dismissed on some preliminary ground like limitation or default in printing, with the result that the trial court's decision stands confined the decision of the Appeal Court will be res judicata and the Appeal Court must be deemed to have heard and finally decided the matter and in such a case the result of the decision of the Appeal Court is to confirm the decision of the Trial Court given on merits, and if that is the decision of the Appeal Court will be res judicata.;