1936 JTR(SC) 39
1936 AIR(PC) 258
Privy Council At Calcutta
Sir George Rankin, Sir Shadi Lal, Justice Lord Thankerton, JJ.
(Raja) Jagadish Chandra Deo Dhabal Deb -Appellant
Versus
Gour Hari Mahato and others -Resopndent
Appeal No. 91 of 1935, Bengal Appeals Nos. 17 and 18 of 1934
Decided On : 30-06-1936
Res judicata cannot be invoked if the plea is not properly raised in the pleadings or issues, as the identity of the subjects in dispute must be established. Procedural orders allowing for the production of original documents before admitting secondary evidence are generally upheld.
(A) Civil Procedure - Res judicata - To rely on a previous judgment as res judicata, it is necessary for the party to identify the subjects in dispute in the present case with the subjects which in the previous case were held to belong to the party and not to the tenants - If the plea is not properly raised by the pleadings or in the issues, the court may decline to allow the party to go into the question.
(B) Evidence - Secondary evidence - Where a document is produced as secondary evidence, the court may remit the suit for re-hearing to provide an opportunity to call for the original document or consider secondary evidence if the original is not produced.
Facts of the case:
Appeals were filed against decrees regarding a dispute over land ownership. The appellant sought to rely on a judgment from a previous suit to establish res judicata. Additionally, a dispute arose regarding the admissibility and use of a specific document as secondary evidence.
Findings of Court:
The court found that the plea of res judicata was not properly raised in the pleadings or the issues, making it impossible to identify the subjects in dispute. Regarding the evidence, the order to remit the suit for the purpose of producing the original document or considering secondary evidence was procedurally sound.
Issues: Whether the plea of res judicata could be raised despite not being properly pleaded in the issues, and whether the procedural order regarding the production of original evidence was correct.
Ratio Decidendi: A party cannot rely on res judicata if the plea was not properly raised in the pleadings or issues, as the identity of the subjects in dispute must be established. Procedural orders allowing for the production of original documents before admitting secondary evidence are not subject to interference without good reason.
Result: Appeals dismissed.
(B) Evidence - Secondary evidence - Where a document is produced as secondary evidence, the court may remit the suit for re-hearing to provide an opportunity to call for the original document or consider secondary evidence if the original is not produced.
Facts of the case:
Appeals were filed against decrees regarding a dispute over land ownership. The appellant sought to rely on a judgment from a previous suit to establish res judicata. Additionally, a dispute arose regarding the admissibility and use of a specific document as secondary evidence.
Findings of Court:
The court found that the plea of res judicata was not properly raised in the pleadings or the issues, making it impossible to identify the subjects in dispute. Regarding the evidence, the order to remit the suit for the purpose of producing the original document or considering secondary evidence was procedurally sound.
Issues: Whether the plea of res judicata could be raised despite not being properly pleaded in the issues, and whether the procedural order regarding the production of original evidence was correct.
Ratio Decidendi: A party cannot rely on res judicata if the plea was not properly raised in the pleadings or issues, as the identity of the subjects in dispute must be established. Procedural orders allowing for the production of original documents before admitting secondary evidence are not subject to interference without good reason.
Result: Appeals dismissed.
J.M. Pringle, A.M. Dunne
Lord Thankerton:-
These appeals are taken against two decrees of the High Court dated 8th August 1933. Two questions are involved, the first being the question of res judicata. The High Court declined to allow the appellant to go into the question of res judicata on the ground that it had not been properly raised by the pleadings or in the issues, particularly in the issues. It seems to their Lordships that the High Court was right in this view, because it was necessary for the appellant, if he were going to make use of the judgment in the suit of 1900 as res judicata to identify the subjects in dispute in the present case with the subjects which in that case were held to belong to the Rajah and not to the tenants.
The other point is a mere matter of procedure, the question with regard to the use of Ex. 17 as secondary evidence. That does not appear to their Lordships to be a question of fact, but rather a question of procedure and the orders made by the High Court were to remit the suits to the Court below for re-hearing after giving the plaintiffs in title suit No. 68 of 1929 an opportunity of calling for the original of Ex. 17 and considering it or, if not produced, then considering secondary evidence, if any, of the teriz; that is what Ex. 17 purports to be. Their Lordships are not satisfied that any good reason has been shown by the appellant for interfering with those orders, and accordingly the appeals will fall to be dismissed and their Lordships will humbly advise His Majesty accordingly.
Appeals dismissed.