JUDGMENT 1. The facts leading to the question of law raised in this case are clearly stated in the plaint. The Plaintiff purchased the property in dispute on the 13th April 1899 on a sale under a mortgage-decree obtained by him against Kalika Prosad. Delivery of possession was, however, resisted by the present Defendant and one Deo Narain Misser. The Plaintiff thereupon instituted a suit against the present Defendant and Deo Narain for declaration of his right by purchase and for a declaration of the absence of any right of the Defendants in that suit to the property. On the 26th August 1901, the suit as against Deo Narain was decreed by consent but it was dismissed as against the present Defendant for want of proof. The present Defendant was, however, absent on the day of hearing. A subsequent application by the Plaintiff for review of judgment was, also, dismissed. The present suit was instituted on the 1st September 1902 for substantially the same relief as that prayed for in the previous suit. The Defendant in answer to this suit asserted a debutter title, and further pleaded that the dismissal of the previous suit operated as a bar to the trial of the present suit. 2. The Munsif decreed the suit overruling the Defendant's contentions. On appeal the learned District Judge of Saran has dismissed the suit, holding it to be barred under sec, 13 of the Code of Civil Procedure. He has not tried the fact in controversy between the parties. 3. Does sec. 13 of the Code apply to a case when in the previous suit which is set up as a bar, the Defendant was absent at the date of hearing and the suit was dismissed on the failure of the Plaintiff to adduce any evidence? 4. There is nothing in Chapter VII of the Code barring the present suit. In the previous suit, there were more Defendants than one; a decree was passed against one of them, and an order was made, apparently under sec.106 of the Code dismissing the suit against the other Defendant. 5. Neither was there an adjudication of an issue raised between the parties, as no evidence was adduced by the Plaintiff, and the Defendant was absent. The fact in controversy was not heard and finally decided within the meaning of sec.13 of the Code. 5. Neither was there an adjudication of an issue raised between the parties, as no evidence was adduced by the Plaintiff, and the Defendant was absent. The fact in controversy was not heard and finally decided within the meaning of sec.13 of the Code. For all practical purposes, both parties were absent, though the Plaintiff or his pleader was bodily present. If both parties were absent at the date of hearing the suit would have been dismissed under sec.98 of the Code, and under sec.99 a fresh suit would be maintainable subject to the law of limitation. The want of adjudication by the Court of the fact in issue would have entitled the Plaintiff to ask for it in a subsequent suit. We are therefore unable to distinguish in principle the present case from a case falling under sec.98. 6. We do not also see our way to bring the matter under any of the explanations to sec.13 of the Code, nor does the learned District Judge rely on any of those explanations. He is of opinion that the previous case must be held to have been heard and finally decided--an opinion which, as we have said, we are unable to accept. 7. In the view we have taken we have been guided by the following observations of the Judicial Committee in Radha Prasad Singh v. Lal Sahab Rai I. L. R. 13 All. 53 (1890), " none of the questions either of fact or law, raised by the pleadings of the parties, was heard or determined by the Judge of the Shahabad Court in 1881, and his decree dismissing the suit does not constitute res judicata within the meaning of the Civil Procedure Code. It must fall within one or other of the sections of Chapter VII of the Code--in the present case it is immaterial to consider which--the severest penalty attached to such dismissal in any case being that the Plaintiff cannot bring another suit for the same relief." We, therefore, set aside the decree of the lower Appellate Court and remand the case for a decision on the merits. Costs of this appeal will abide the result. The Plaintiff is entitled to a refund of Court-fees.