- (1.) THE facts in this case are briefly as follows : The respondent No. 1 in this appeal, namely, Shree Bhagaeati hosiery Mills Limited (hereinafter referred to as the "mills") had a cash credit account with the appellant, the Central bank of India Limited (hereinafter referred to as the "bank" ). In the said account, the appellant Bank lent and advanced various sums of money from time to time to the Miils and granted overdraft facilities, against inter alia hypothecation of goods. By a policy of fire Insurance issued by the respondent No. 2 the General Assurance society Limited, the stock of the Mills' goods stored in a godown at Bhagalpur were insured for a sum which was ultimately increased to Rs. 2,75,000/ -. It is stated that sometime in June, 1963, there was a big fire in the godown of the Mill at Bhagalpur as a result of which there was an explosion and the goods were damaged. It is stated that at that time the Bank's claim against the Mill on the overdraft account amounted to a sum of Rs. 1,47,971-13-3. It is next stated that the Mill, in spite of demand, did not pay the amount and so the Bank filed a suit, being money suit No. 116 of 1964 (The Central Bank of India v. The General Assurance society Ltd.), in the First Court of the subordinate Judge at Patna claiming inter alia a decree for Rs. 2,75,000/- with interest and costs. This suit was compromised and the Insurance Company agreed to make an ex gratia payment to the Bank for a sum of Rs. 1,47,931-13-3 which was accepted by the Bank and was credited in the overdraft account of the Mill. Even after crediting the said amount in the overdraft account, there was a sum still due to the Bank from the Mill. As this was not paid, the Bank filed a suit being money suit no. 248 of 1955 (The Central Bank of india Limited v. Shree Bhagwati hosiery Mills Limited and others) before the Subordinate Judge, Bhagalpore for recovery of the balance due on the overdraft account. The Mill contested the suit and filed a written statement. Issues were settled in that suit some. time on the 31st day of July, 1956 and i shall have occasion to refer to it presently. This money suit was decree in favour of the Bank on the 23rd december, 1961. Against that, an appeal has been taken before the Patna high Court and the appeal is still pending. In the meanwhile, on the 24th june, 1957, the suit in respect of which this appeal arises was filed in this cburt by the Mills against the Bank and the Insurance Company, being suit No. 1105 of 1957 (Shree Bhagwati Hosiery mills Limited v. The Central Bank of india Limited and another ). Subsequently the Insurance Company has been dismissed from the suit. It appears that the suit came up for hearing in the court below, when the plaintiff asked for an amendment of the plaint. The amendment was allowed on the 1st September, 1964. An appeal has been preferred against that order hut we are not concerned here with that appeal. On the 5th May, 1965 an application was made in the Court below by the Bank for amendment of the written statement. In that application two reliefs were claimed. The first was that the written statement should be amended by taking a plea of res judicata in other words it was contended that the Bhagalpur suit and the present suit covered the same ground and as the Bhagalpur suit had been decreed the matter was res judicata between the parties. The second prayer was that, inasmuch as the decree in the bhagalpur suit was subject to appeal in the Patna High Court the hearing of the suit in this Court should be postponed till after the disposal of that appeal, namely, appeal No. F. A. 75 of 1962 pending in the Patna High Court. In fact, the argument in this Court has been confined to these points and we are not concerned with any other point. On the 17th May, 1955 the learned judge in the Court below has dismissed this application but has not given any judgment. Against this order of dismissal this appeal is directed.
(2.) THE first point taken by Mr. Ghose, appearing on behalf of the Mills, is that no appeal lies against the order of the Court below. He has argued that an order refusing an amendment in a pleading does not decide any right between the parties and therefore iis not a judgment within the meaning of clause 15 of the Letters Patent and therefore no appeal lies. He has however conceded that if the amendment relates to a question of the Court's jurisdiction then in that event an appeal will lie, but he has further argued that the question of jurisdiction must be one of "inherent" jurisdiction, meaning thereby either territorial or pecuniary jurisdiction or relating to the subject-matter. He argues that the question of "res judicata" is not a matter relating to the jurisdiction of the court. He has cited several cases, to support his argument that "res judicata" does not involve a point of jurisdiction. For example, he has cited a bench decision of this Court (1) Rajani, kumar Mitra v. Ajmaddin Bhuiya, (1928) 48 C. L. J. 577, where it was held there that the bar of res judicata is one which does not affect the jurisdiction of the Court but is a plea in bar. It is quite true that there are a number of authorities to this effect, some of which are conflicting. In Sarkar's commentaries on the Civil Procedure Code, fourth Edition, page 11, it is pointed out that the distinction between "res judicate" and "estoppel" is that res judicata ousts the jurisdiction of the court while estoppel is not a rule of substantive law, in the sense that it does not declare any immediate relief or claim. Several cases! are cited there of this court and of the Bombay and allahabad High Courts. In our opinion ,it is unnecessary to go into all these cases because the point is covered by a recent decision of the Supreme court (2) Pandurang Dhondi chougule and others v. Maruti Hari Jadhav and others, A. I. R. 1966 S. C. 153. In that case, the Supreme Court was dealing with the question as to the meaning of the word "jurisdiction" in section 115 of the Code of Civil Procedure. Gajendragadkar, C. J. said as follows: "it is well-settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous dicision on these pleas can be said to be concerned with questions of jurisdiction although this puts the matter be yond controvesy, I am tempted to refer to a Bench decision of this Court, presided over by Chakravarti, C. J. (3)Shorab Merwanji Modi and another v. Mansata Film Distributors and another, 61 C. W. N. 559. That was a case under section 10 of the Civil Procedure Code. Sections 9, 10 and 11 appear in part 1 of the Code of Civil Procedure, and are inter alia under the head "jurisdiction of the Courts and res judicata". Section 9 says that the Courts shall have jurisdiction to try all suits of a civil nature, excepting suits of which their cognizance is either expressly or impliedly barred. Section 10 reates to the stay of suits, providing inter alia, that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they were litigating, etc. , pending in the same or any other Court in India having jurisdiction in the matter. Section 11 deals with the principle of res judicata. This also lays down a bar upon courts to 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 were litigating etc. , in a Court competent to try such subsequent suit. Both sections 10 and 11 are restrictions on the power of the Courts to try suits under circumstances mentioned therein. The learned Chief Justice said as follows: - "in view of the somewhat indeterminate terms in which the test laid down in the two leading high Court decisions were framed, the task of deciding whether a particular order is or is not a judgment is not easy. But it appears to me that at least where a question of the jurisdiction of the Court to entertain or proceed with a suit or proceeding is involved and a decision on that question is given, such decision affects the merits of the controversy between the parties. It is true that it does not touch the actual dispute regarding the respective rights and liabilities which is the subject-matter of the suit or proceeding but whether those rights and liabilities can be adjudicated on by a particular court at all or adjudicated on at the time, is also a matter of controversy between the parties. To be entitled to have one's suit or proceeding decided by a particular court or to be entitled to object that a suit or proceeding brought by one's adversary cannot be tried or tried for the time being by the court in which it has been brought is, it seems to me, also a matter of right".
(3.) IT was held that an appeal lay under clause 15 of the Letters Patent. Ota similar reasoning, it should be held that a plea of res judicata, which determines whether the Court of the plaintiffs choice should or should not determine a point in issue, gives rise to rights both to the plaintiff and the defendant and where such rights are affected, it plainly comes within the scope of clause 15 of the Letters patent. The defendant here wishes to take the point of "res judicata". If at the trial this point is successful, it will stop the suit from proceeding any further, and as stated in the Supreme court judgment cited above, it relates to the jurisdiction of the Court to entertain the suit. If the defendant is not allowed to raise this point now it will lose this right for ever. Under the circumstances, the matter does come within the ambit of clause 15 of the letters Patent and is consequently appealable.;