1929 (11) TMI 14

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.... On the death of Nistarini, applications were made by both parties to the District Court for the grant of letters of administration to her estate under Act 5 of 1881. The proceedings being contentious were tried as a suit by the Subordinate Judge to whom the case was transferred under the provisions of Bengal Act 12 of 1887. The principal, if not the only, question for his decision was whether Dwijapada was the nearest heir of Nistarini, this depending upon a pure question of fact, namely, whether Dwijapada's mother was the sister of Nistarini's husband. This issue was formally raised and determined by the Subordinate Judge in favour of respondent 1 Dwijapada, and on 20th August 1912 the Subordinate Judge ordered that letters of adm....

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....y was not her heir, but that Gokal and Banwari were entitled to the property. Dwijapada appealed, and the High Court reversed the decision of the trial Judge upon both questions. They held that the appellant's suit was barred by the rule of res judicata, and they were also satisfied upon the evidence that respondent 1 was the heir of Nistarini. The unsuccessful plaintiffs have now appealed to His Majesty in Council, and the first matter for consideration is that of res judicata. 5. The question as to what is to be considered to be res judicata is dealt with by Section 11, Civil P. C, of 1908. In that section are given many examples of circumstances in which the rule concerning res judicata applies; but it has often been explained by ....

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....emphasise that the rule of res judicata, while founded on ancient precedent, is dictated by a wisdom which is for all time. "It has been well said," declared Lord Coke, "interest reipublicae ut sit finis litium-otherwise, great oppression might be done under colour and pretence of law" (6 Coke, 9a). Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of! Katyayana, who describes the plea thus : "If a person, though defeated at law, sue again, he should be answered, -"You were defeated formerly."....