P L D 1961 Dacca 582 (PLP)

2. Plaintiffs have claimed shares on purchase from some persons giving a certain genealogical table. The contesting defend ants have challenged the genealogical table and the shares claimed by the plaintiffs. To meet the objection of the defendants, the plaintiffs have relied upon a previous decision in Title Suit No. 50 of 1921 between the parties and relating to the same subject-matter of the present suit. The Courts below upholding the contention of the plaintiffs rejected that of the defendants on the plea that the defendants' plea was barred by the principle of res judicata in view of the decision in the previous Title Suit No. 50 of 1921.

3. Mr. De, the learned Advocate for the appellants, contends that the properties described in Title Suit No. 50 of 1921 were valued at Rs. 100 but the properties in the present suit which were the properties in the first suit have been valued at Rs. 4,000 which was beyond the jurisdiction of the learned Munsiff and, as such, the question of res judicata does not arise.

4. The first portion of section 11 of the Code of Civil Procedure runs as follows "No Court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." Mr. De admits that the issues in the present suit have been directly and substantially in issue in the previous suit and were decided and that the suits are between the same parties and the litigation is also on the same title but Mr. De relying on the phrase "in a Court competent to try such subsequent suit" contends that the said phrase goes to show that the 1st Court which tried the former suit might have jurisdiction to try the later suit and that as the present suit has been valued at Rs. 4,000, the learned Munsif who tried the 1st suit was not competent to try the present suit and as such any decision given by the learned Munsif in previous suit cannot operate as res judicata. Now the phrase "in a Court competent to try such subsequent suit" has been consider ed by various High Courts. In the case of Gopi Nath Chobey v. Bhagwant Pershad arid another (I L R 10 Cal. 697), the same phrase came up for consideration as one in section 13 of Act XIV of 1882 corresponding section 11 of the present Code. The following passage is relevant for the purpose "Now the District Judge says that, as the Munsif who tried the former suit would not be competent to try the present suit which is `the subsequent suit', therefore, the provision of section 13 does not apply. We are of the opinion that this construction of section 13 is not correct. It is well known that in this country the value of landed property is increasing every day. A suit regarding a particular property may be, so far as the pecuniary value of it, properly cognizable by a Munsif to-day and ten years hence a suit for that property, having regard to its pecuniary value then, might not be cognizable by the Munsif. But it would be unreasonable to hold, in a suit which might be brought ten years hence, that a decision between the same parties to-day passed by a Munsif having full jurisdiction would not be res judicata ten years hence. The reasonable construction of the words in a Court of jurisdiction competent to try such subsequent suit, seems to us to be that it must refer to the jurisdiction of the Court at the time when the first suit was brought, that is to say, if the Court which tried the first suit was competent to try the subsequent suit if then brought ; the decision of such Court would be conclusive under section 13 although on a subsequent date, by a rise in the value of such property or from any other cause, the said Court ceased to be the proper Court, so far as pecuniary jurisdiction is concerned, to take cognizance of a suit relating to that property." The aforesaid decision was approved in-the ease of Mohendra Nath Biswas and others v. Shamsunnessa Khatun and others (19 CWN 1280). The following observation is to the point "As regards the first reason, it is plain that to determine for purposes of the application of the rule of res judicata, whether the Court which decided the former suit had jurisdiction to try the subsequent suit, regard must be had to the jurisdiction of the Court at the date of the former suit and not to its jurisdic tion at the date of the subsequent suit ; If the contrary views were adopted . . . . . . . ." Some other authorities have been cited by the learned Advocate for the respondent in support of his contention that the present objection of the defendants is barred by the principle of res judicata. We need not refer to them. Mr. De the learned Advocate for the appellants except putting forward his argument as stated above has not cited any authorities in support of his. contention. To the phrase "in a Court competent to try such subsequent suit two meanings may be attached but if the meanings as advanced by the learned Advocate for the appel lants is accepted, then in that case, the purpose of section 11 of the Code will be defeated. The introduction of section 11 in the Code is for the purpose of achieving finality in litigation. This purpose will never be realised if the contention be accepted as correct. Suppose once an issue is decided by a competent Court at a time having jurisdiction and subsequently there is a rise in price and another suit is instituted before another higher Court over the same subject-matter and the same is held to be triable, then there may be two conflicting decisions which is also apparent as observed by the lower Appellate Court in its judgment. Further more, there will be no end of litigation and there will be multi plicity of suits, which is not at all intended by the legislature or by the provisions of the Code of Civil Procedure. All that is required is finality in litigation so that parties tray know that is their respec tive position.

5. So, in our considered opinion, the reasonable construction' of the phrase "in a Court competent to try such subsequent suit" appears to be that it must refer to the jurisdiction of the Court at the time when the first suit was instituted and not that of the Court at the time when the second suit, is instituted. Accordingly subsequent rise in value of the properties will not in any way determined the jurisdiction of the Court but the value of the! properties at the time when the first suit was instituted. If this interpretation be given to this phrase, in that case the purpose of section 11 of the Code of Civil Procedure will be served. Hence, once a snit is tried by a Court having jurisdic tion both pecuniary and local and decided finally; that will be binding between the parties. Rise in price of the subject-matter of the first suit in future and filing of a suit in a higher Court valuing the property at a higher price, will not take away the effect of the decision that was given in the previous suit between the same parties litigating under the same title. Hence we find no substance in this contention. In the result, the appeal is dismissed with costs. M. R. KHAN, J,- I agree. A. H.