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Judgment
Madhavan Nair, J.—The plaintiff-appellant, the Rajah of Venkatagiri claimed from the defendant-respondent the holder of an inam in his
estate a small sum of money amounting to Rs. 5-9-2 as estimated in the memorandum of second appeal in respect of a cess called. ""sivunimera"" for
faslis 1329 to 1332. The defendant contended that he is not liable to pay this cess as it is only a. voluntary payment. The appellant then stated that
it was not open to the defendant to raise this plea in view of the decision in O.S. No. 122/18 which would operate against him as res-judicata. The
lower Courts dismissed the plaintiff''s claim on the ground that sivunimera was shown to be a voluntary payment and that the decree in O.S.
122/18 obtained by the plaintiff against the defendant''s father does not operate as res judicata against the defendant.
It is argued before me that, evert though sivunimera is a voluntary payment, the respondent is now precluded from raising the plea on the ground
of res judicata by virtue of the decision in O.S. 122/18. The respondent raises a preliminary objection that no second appeal lies in this case as the
appellant''s suit is of a small cause nature for an amount which does not exceed Rs. 500. Two points for my decision therefore are: (1) whether the
suit is of a small cause nature and (2) whether the plea of res-judicata is sustainable.
Point 1. It is argued on behalf of the appellant that the present suit is excepted from the cognisance of the Court of Small Causes by virtue of
Clause 13 Schedule 2, Small Cause Courts Act. This clause refers to a suit to enforce payment of the allowance or fees respectively called malika
or cess or other dues when the cess or other dues are payable to a person by reason of his interest in any immovable property as hereditary office
or any shrine or religious office. If the cess called sivunimera is payable by the respondent to the appellant by reason of his interest in immovable
property, then clearly a Court of Small Causes cannot take cognizance of the suit. It has been held by this Court that the cess or dues
contemplated in Article 13 are payments which a person is entitled to as representing his interest in a certain immovable property and not because
he possesses some interest in immovable property: see Maharajah of Vizianagaram v. Veeramma [1913] 36 Mad. 18, In Re: Srinivasulu Naicken
and Others, . In this case it was conceded in the lower Courts that sivunimera is a voluntary payment. It appears to me that this concession means
that sivunimera is not paid by the respondent to the appellant by reason of his interest in immovable property. If the claim is based on some interest
in immovable property, then prima facie, it will be a claim binding on the respondent. As the payment is purely a voluntary one I must hold that it
does not come within the purview of Article 13, Schedule 2. I must therefore uphold the preliminary objection. This is enough to dispose of this
second appeal, but as the question of res judicata was also argued before me, I would very briefly consider that plea also.
In O.S. 122/18 the plaintiff sued the father of the present defendant as defendant 1 for Rs. 29-13-0 etc. from shrotrium sivunimera, road cess,
railway cess, for the inam in the possession of the defendants for -faslis 1324-1326. The defendants appeared in person but filed no written
statement. They confessed judgment and a decree was passed against them. Paras. 2 & 3 in that judgment are as follows:
Para. 2. The defendants appeared in person but filed no written statement.
Para. 3. Defendants in person confess judgment and say that they remitted Rs. 24-9-0 and plaintiff''s pleader admits receipt subsequent to suit.
Decree for plaintiff for the rest of the suit amount with costs.
It is argued that consent decrees have the force of res judicata and as the decree in question was passed on account of the consent of the
defendant''s father, that decree inasmuch as it acknowledges the liability of the defendant''s father to pay sivunimera precludes the defendant from
raising the plea of non-liability now. In support of the argument that a consent decree between two parties would operate as res judicata in a
subsequent suit between the same parties with reference to the same matter, reliance is placed by the appellant mainly on in Be South American
and Mexican Co. [1895] 1 Ch. 37, Joint Committee of River Ribble v. Croston Urban District Council [1897] 1 Q.B. 251, The Bellcairn [1886]
10 P.D. 161 and Bhai Shankar Nana Bai v. Morarji Keshavji and Co. It is not necessary to refer to these cases in detail nor do I think it
necessary to consider the question whether Section 11, Civil P.C. applies in terms to consent decrees. Though it cannot strictly be said in the case
of consent decrees that the matters in issue between the parties have been ""heard and finally decided"" within the meaning of Section 11, Civil P.C.
it has been held that a consent decree has
to all intents and purposes the same effect as rag judicata as a decree passed per invitum
and raises an estoppel against the party contending in the subsequent suit that such decree is not binding on him: see Bhai Shankar Nana Bai v.
Morarji Keshavji and Co. [1912] 36 Bom. 283, Sivadas v. Birendra AIR 1926 Cal. 672. An examination of the cases referred to would reveal
the fact that, in all of them the question agitated between the parties in the subsequent suit had been put in issue in the prior proceedings, though
ultimately it was decided against the contesting party by his consent. That this condition is necessary to give the consent decree the force of
estoppel appears from the following observation made by Beaman, J., in the course of his discussion regarding the binding nature of consent
decrees.
For when a party has raised his defence and has then consented to judgment it is the same thing as though he had abandoned his defence and
admitted them to be true.
The distinction that I am trying to point out is, I think nowhere better explained than in the judgment of Wood, V.C. in Gouchar v. Clayton
[1865] 34 L.J. Ch. 239 where it was held that a judgment given by consent when there are no pleadings in the action does not operate as res
judicata. The facts of the case and the point that is decided are thus stated in the head note.
A patentee brought an action for damages For infringement against a certain firm who gave judgment by consent before declaration filed, and
immediately took a license to use the patent for a term. On a bill being filed by the patentee after the expiration of the license, to restrain an alleged
further infringement of his patent, by the defendants in the action and certain other persons, who had joined the firm after the date of the judgment
at law. Held: upon motion for decree that the defendants in the suit were not estopped either by the license or by the judgment at law from denying
the validity of the plaintiff''s patent.
The argument that the previous judgment would operate as an estoppel at law was thus dealt with by the learned Vice Chancellor;
The judgment would not have been an estoppel at law; even if all the present defendants had been parties to the record, as there was nothing to
show that the question had ever been put in issue; and the defendants might have submitted, either to avoid litigation or because they thought it not
worth their while to try the question. In order to effect an estoppel, it was necessary that it should appear on the record that the question had been
put in issue.
In this connexion, the respondent referred to two cases: Irish Land Commission v. Ryan [1900] 2 Ir. R. 565 and Bradshaw v. Mallan [1920] 2
Ir. R. 412. The scope of the principle of estoppel is applied to judgments by default or by consent is thus defined in the 13th Volume of Halsbury''s
Laws of England, para. 496.
Where, however, the former judgment is a judgment by default and the plaintiff has delivered no pleading, the estoppel is limited to what appears
on the face of the judgment it-self. On the same principle a defendant who has consented to judgment before delivery of any pleading is not
estopped as against the plaintiff from subsequently setting up matters which might have constituted a defence because they have never been in
issue, but it is otherwise when a defendant who has consented to judgment after pleading as defence the matter which he seeks to set up in the
latter pleading.
Applying this principle which I have explained above, the judgment, in O.S. No. 122/18 would estop the defendant from setting up the plea of
non-liability only if his father has consented to the prior judgment after pleading in defence the matters which he (the defendant) seeks to set up in
the latter proceeding (that is, the present suit). From the extract of the judgment in O.S. No. 122/18 given above it is clear that, though the
defendants appeared in person, they filed no written statement: they simply confessed judgment and a decree was passed against them for the
balance of the amount remaining unpaid. The attitude of the defendants in the prior suit might be thus described in the language of Wood, V.O. The
defendants might have submitted either to avoid litigation or because they thought it was not worth their while to try the question. If so, the question
now raised not having been put in issue in the prior suit, how can a decision in that suit operate as res judicata in a subsequent suit? I must therefore
hold that the respondent is not precluded from disputing the right of the appellant to levy the cess by virtue of the decision in O.S. 122/18.
As I have decided that the prior decision is not a bar to the plea now raised by the respondent, it is not necessary to consider the subsidiary
question raised by the respondent that, in any event, a prior decision ordering payment of cess in a particular fasli cannot estop the defendant from
pleading non-liability to pay in a subsequent suit for the cess of a subsequent fasli, the cess in this case being for faslis 1329 to 1332 while the
previous suit related to the cess in faslis 1324 to 1326. In the result, the second appeal is dismissed with costs.