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Appeal from Appellate Decree No. 512 of 1960, decided on 22nd June 1965.

Resjudicata--- Constructive resjudicata‑Principles embodied in S. Il not exhaustive‑Application of principle of constructive res judicata depends on facts and circumstances of each case‑Maybe prayed in aid even against pro forma defendants.

The principles of res judicata and constructive res judicata embodied in section 11 of the Code of the Civil Procedure are not exhaustive. The said principles are constructively applied to cases where a party could and should have agitated the issue in a former suit. He is estopped from agitating the same in a later suit if he had not raised it in the former. The application of the principle of constructive res judicata will depend on the facts and circumstances of each case. If in a suit between A and B, where A claims the suit‑land to be divided on partition between them and C is made a pro forma defendant on the allegation that by virtue of an order passed in a former case, the title of C to the suit‑land has been wiped out, C is called upon to refute the allega tion that his title to the suit‑land has been wiped out, although C was merely made a pro forma defendant in the suit, no relief being claimed against him. Because of the fact that there is a distinct allegation against him that his title in the suit‑land has been extinguished because of certain things stated in the pleadings, it would not do for C, although he is merely made a pro forma defendant, to maintain silence with regard to the specific case that his title was extinguished, notwithstanding the fact that no relief was claimed against him. If he brings a separate suit against A or B, he may be successfully met on the ground that he was estopped from agitating a point which he was called upon to agitate, and did not agitate, in a former suit. Having chosen to remain silent on the former occasion, when he was made a pro forma defendant, he would be silenced for all time as between the same parties on points which he could and should have raised. Under appropriate circumstances the principles of constructive res judicata may be prayed in aid even against pro forma defendants.

Chini Sardar v. Nilmon Bibi 5 D L R 436 ; Gajanan Agarwala v. Hamidar Rahman 40 C W N 1205 ; Rakhal lass v. Haridas 40 C W N 1208 and Bishnupada Samanta v. Munshi Muhammad Esmail Sarkar 39 C W N 938 ref:

Kati Mohan Saha for Appellants.

Ranadhir Sen for Respondents.

Dates of hearing: 21st and 22nd June 1965.

‑This appeal, by defendants, arises, out of the following circumstances: Plaintiffs instituted a suit for declaration that their title to the suit‑land was not affected by an order passed in a miscellaneous case setting aside a court- sale wherein a predecessor of the plaintiffs auction‑purchased the suit‑land. Plaintiffs' case was that the order passed in the aforesaid miscellaneous case setting aside the above‑mentioned sale, was fraudulently obtained, in the sense that notices upon the predecessor of plaintiffs were suppressed.

The defence is a traverse of plaintiffs' case. It is contended that the aforesaid notices of the application for setting aside the sale were not suppressed. It was further contended on behalf of the defence that plaintiffs were estopped by principles of res judicata from agitating this point.

It is not necessary to set out the details of the averments in the pleadings of the parties; it would be sufficient to state that the suit‑land was sold in a rent‑sale and purchased in 1940 by the Administrator‑General of Bengal, who settled the same with the predecessor‑in‑interest of plaintiffs. The Administrator -General obtained delivery of possession of the suit‑land in 1942 and settled the same with plaintiffs' predecessor‑in‑interest. Some of the defendants instituted proceedings to set aside the said sale to the above‑mentioned Administrator‑General, which is the basis of the plaintiffs' title. The first unsuccessful attempt to do so was made in 1948 in Miscellaneous Case No. 250 of 1948. The judgment disposing of the said case has been marked as Exh. 1 in the suit. The appeal in respect of the said miscellaneous case also failed. The judgment pronounced by the Appellate Court below is marked as Exh. 2 in the case. Then another set of defendants made an attempt to have the sale set aside and failed to do so. This case was marked as Misc. Case No. 354 of 1950. Thereafter a partition suit instituted by some of the defendants against some other defendants and that suit was marked as Partition Suit No. 58 of 1953. The present plaintiffs were not made parties to the said partition suit and no relief was claimed against them. However, during the pendency of the aforesaid partition suit some of the defendants filed a miscel laneous case to have the sale set aside. That case was marked as Misc. Case No. 209 of 1954. It appears that the predecessor in7interest of the present plaintiffs was made party to the aforesaid miscellaneous case, in which the aforesaid sale was set aside ex parte in the absence of the predecessor‑in‑interest of the plaintiffs. In the present suit plaintiffs have challenged that the order made in the aforesaid Misc. Case No. 209 of 1954 setting aside the above‑mentioned sale was inoperative against the plaintiffs inasmuch as notices in respect of the last‑mentioned Misc. Case No. 209 of 1954 were fraudulently suppressed and the order was made behind the back of the predecessor‑in‑interest of the plaintiffs.

On a full consideration of the facts of the case, learned Subordinate Judge, who heard the present suit, came to a finding that the order passed in the said Misc. Case No. 209 of 1954 was inoperative against the plaintiffs inasmuch as the processes in respect thereof were fraudulently suppressed by the defendants concerned. The suit was, therefore, decreed.

Against the judgment and decree passed by the learned Subordinate Judge the present contesting defendants preferred an appeal which was heard and disposed of by an Additional District Judge of Bakerganj. The appeal was marked as Title Appeal No. 32 of 1958. Learned District Judge also, on a consideration of the evidence in the case as well as the submissions made by the parties, dismissed the appeal and affirmed the judgment and decree passed by the learned Subor dinate Judge. Hence this appeal.

At the hearing of this appeal we were taken through the judgments pronounced by the Courts below. Learned Advocate for the appellants could not assail tine findings of fact concurrently arrived at by the Courts below that in the said Misc. Case No. 209 of 1954 processes were fraudulently suppressed and that the ex parte order setting aside the impugned sale was inoperative against the plaintiffs. He has, however, vigorously contended that plaintiffs are estopped from agitating in this suit that the aforesaid miscellaneous case was void and inoperative against them, not having agitated this question during the pendency of the said Partition Suit No. 58 of 1953 wherein at a subsequent stage plaintiffs were made pro forma defendants.

The point that has been urged is, that plaintiffs are hit by the doctrine of constructive res judicata which, in essence and in substance, is a principle of estoppel.

The first point which arises is the question as to whether the plaintiffs were, in fact, made pro forma defendants in the aforesaid Partition Suit No. 58 of 1953. From the plaint in that suit as well as from the records of the present case it appears that the present plaintiffs were not made defendants in the said suit. It does not appear that they were made pro forma defendants at a subsequent stage of the partition suit. When the appeal in respect of the present suit was being heard by the learned Additional District Judge, it was argued on behalf of the appellants (namely, defendants in the present suit) that the present plaintiffs were at a subsequent stage made pro forma defendants. There is nothing on record of this case to support this proposition. We do not think that we would be justified in holding that, in fact, the present plaintiffs were made pro forma defendants in Partition Suit No. 58 of 1953, in the absence of anything to show that they were, in fact, made such pro forma defendants. The question of estoppel or constructive res judicata, as raised by defendants, appellants, does not arise in such a circumstance.

Appellants, therefore, cannot succeed in the only point which has been urged before us. The appeal thus stands dismissed.

Even if it is conceded for argument's sake that the plaintiffs were made pro forma defendants in Partition Suit No. 58 of 1953, it is difficult to see how they are estopped from agitating against the order passed in Misc. Case No, 209 of 1984 in which the impugned sale was set aside ex parte, not having been called upon to raise such an issue in the said suit.

On behalf of the respondents (plaintiffs in this suit) it has been co tended that inasmuch as it is claimed that plaintiffs in the present suit were merely pro forma defendants in Partition Suit No. 58 of 1953, principles of constructive res judicata cannot operate against them so as to bar the present suit. Reliance has been placed on a decision of a Division Bench of this Court in the case of Chini Sardar v. Nilmon Bibi (5 D L R 436) and also in the cases of Gajanan Agarwala v. Hamidar Rahman (40 C W N 1205), Rakhal Dass v. Haridas (40 C W N 1208) and Bishnupada Samania v. Munshi Muhammad Esmail Sarkar (39 C W N 938). We would like to observe that the point raised in this appeal is not exactly the same as was decided in the aforesaid cases. In the cases cited above, the question was, whether the decision in a former suit operated as res judicata against pro forma defendants in the said former suit, against whom no relief was claimed in the former suit The answer was that the decision in the former suit would not operate as res judicata for the simple reason that no issue, in fact, was raised between plaintiff in the former suit and the pro forma defendants against whom no relief was claimed in the earlier suit. We agree with the principle enunciated in the aforesaid cases in the light of the facts of those cases.

The point raised here is different, namely, that the plaintiffs in the present suit, having been impleaded as pro forma defendants in Partition Suit No. 58 of 1953 where the suit‑land was sought to be divided by metes and bounds between the present defendants and some other defendants, the present plaintiffs not having challenged the order setting aside the impugned sale (which is the foundation of plaintiffs' title) passed in Misc. Case No. 209 of 1954, are estopped by principles of constructive res judicata from agitating in the present suit the validity of the order passed in the said Misc. Case No. 209 of 1954.

The principles of res judicata and constructive res judicata embodied in section 11 of the Code of Civil Procedure are not exhaustive. The said principles are constructively applied to cases where a party could and should have agitated the issue in a former suit. He is estopped from agitating the same in a later suit if he had not raised it in the former. The application of the principle of constructive res judicata will depend on the facts and circumstances of each case. If in a suit between A and B, where A claims the suit‑land to be divided on partition between them and C is made a pro forma defendant on the allegation that by virtue of an order passed in a former case, the title of C to the suit‑land has been wiped out, C is called upon to refute the allegation that his title to the suit‑land has been wiped out, although C was merely made a pro forma defendant in the suit, no relief being claimed against him. Because of the fact that there is a distinct allegation against him that his title in the suit‑land has been extinguished because of certain things stated in the pleadings, it would not do for C, although he is merely made a pro forma defendant, to maintain a silence with regard to the specific case that his title was extinguished, notwithstanding the fact that no relief was claimed against him. If he brings a separate suit against A or B, he may be successfully met on the ground that he was estopped from agitating a point which he was called upon to agitate, and did not agitate, in a former suit. Having chosen to remain silent on the former occasion, when he was made a pro forma defendant, he would be silenced for all time as between the same parties on points which he could and should have raised. Under appropriate circumstances they principles of constructive res judicata may be prayed in aid even against pro forma defendants.

In the present case appellants (defendants) have failed to establish that even if plaintiffs were added as pro forma defendants in the earlier suit, namely, Partition Suit No. 58 of 1953, they were called upon to make the points which they are now seeking to agitate in this suit. No such question of constructive res judicata arises in the present case, having regard to the fact that we have held that it has not been established that plaintiffs were made pro forma defendants in Partition Suit No. 58 of 1953, and furthermore, that even if they were made such pro forma defendants, it has not been shown that they were called upon to agitate in the earlier suit the point which has been mooted in the present case.

The appellants, therefore, fail on the only point which has been agitated before us. No other point has been pressed before us. The appeal is accordingly dismissed but without any order as to costs.

.‑I agree.

S. Q.

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