P L D 1956 Dacca 101 (PLP)

IBRAHIM, J.‑The plaintiffs appellants brought the suit for rent for the years from 1347 to 1350 B.S. at the rate of Rs. 24‑15‑3 pies per annum. The jams is recorded as Rs. 18 in the settlement khatian, and it is admitted that this was the jama. The plaintiffs' case is that, subsequent to the publica tion of the settlement khatian, the defendants executed a kabuliyat, agreeing to the enhanced rate claimed in the suit. The kabuliyat has not, however, been produced; but the plaintiffs rely on an ex parte decree in a previous suit for rent for the years from 1342 to 1345 B.S. This decree was realised by execution. The enhanced rate is contested by the defendants. The claim for the enhanced rate has been refused by both the Courts below. Mr. Khondkar contends before me that the ex parte decree in the previous suit is res judicata. As observed in Gnanada Gobinda Chaudhury and others v. Nalini Bala Debi and others (30CWN593), in the case of suits for rent or other recurring liability the causes of action for suits for successive periods are different. In the case 'of such suits for the doctrine of res judicata to apply, it will have to be shown that the question of right or liability, not merely for the period in the previous suit but that for all times or once for all, was directly and substantially in issue and was tried and deter mined. If the decision falls short of that requisite and if the general question was gone into and decided merely for the purpose of deciding the right or liability for the period involved in the suit, then the issue was raised not directly and substantially but collaterally or incidentally. In a snit for rent the issue as to rate, which governs the rights and liabilities of the parties for all times, cannot be barred by res judicata, if it was gone into in a previous suit only incidentally to determine the liabilities for the particular period. In Madhusudan Shaha Mundul and others v. Brae (I L R 16 Cal.300(FB)), it was observed "We are of opinion, also, that neither a recital in the decree of the rate alleged by the plaintiff, nor a declaration in it as to the rate of rent which the Court considers to have been proved, would operate in such a case so as to make that matter a res judicata ; assuming, of course, that no such declaration were asked in the plaint as part of the substantive relief claimed, the defendant having a proper opportunity of meeting the case." In Maharaja Manindra ‑Chandra Nandy v. Upendra Chandra Hazra (9CLJ343), it has been held that a decree in a previous rent suit for a certain period, which did not decide the question of the rate of rent, is not res judicata in a subsequent suit. In the present case it is not proved that any declaration as to the rate of rent was specifically askew for in the plaint in the previous suit. The ex parte decree does not operate as res judicata as to the rate of rent. The lower appellate Court is right. The appeal is dismissed with costs. K. M. A. Appeal dismissed.