JUDGMENT M.N. Shukla, J. - This appeal preferred by the defendant possess the question as to whether the decision given in proceedings under order 9, rule 13, C.P.C. and dismissing the defendant's application for setting side ex-parte decree in the circumstances of the case operated as res judicata and precluded the present plaintiffs from bringing a suit for a declaration that the previous decree was null and void as it had been obtained by fraud. The suit giving rise to this appeal was decreed by the courts below and aggrieved by the same the defendant-has preferred this second appeal. 2. I have heard Sri S. P. Gupta on behalf of the appellant but none has appeared for the plaintiff respondents. 3. The short facts of the case are that on 3-3-1954 the appellant Har Bilas had made an application under Section 220 of the U.P. Zamindari Abolition and Land Reforms Act for recovery of arrears of rent at the rate of Rs. 52/- per annum and in the alternative for ejectment of the present respondents on the ground that they were Asamis of the plots and had fallen into arrears of rent. Notice was issued on the said application and the report of the process server showed that the service thereof had been effected on the present respondents by refusal. An ex parte order for their ejectment was passed on 1-6 1954. Possession on the basis of the aforesaid decree was also alleged to have been taken by the appellant vide Dakhalnama dated 25-6-1954. On 27.5.1955 the respondents moved an application under order 9, rule 13 C.P.C. for setting side the ex-parte order dated 1-6-1954 passed in the case under section 220 of U.P. Act I of 1951. The application was rejected by the Tehsildar by his order dated 20-2-1956 (Exhibit 9). The respondents preferred an appeal which was dismissed by the Additional Commissioner by his judgment dated 15. 1. 1957 (Exhibit A3). In these circumstances the respondents filed the present suit on 18-2-1957 for a declaration that the decree No. 6 of 1954 passed by the Assistant Collector together with proceedings in pursuance thereof were obtained fraudulently and were null and void and were wholly ineffectual against the plaintiffs. The relief for a permanent injunction restraining the defendant from interfering with the Plaintiffs' peaceful possession, user and enjoyment of the plots in suit was also claimed. 4. The relief for a permanent injunction restraining the defendant from interfering with the Plaintiffs' peaceful possession, user and enjoyment of the plots in suit was also claimed. 4. The lower appellate court came to the conclusion that fraud had been practised in the service of summons of the proceedings under Section 220 of U.P. Act I of 1951 and that the report of the process server that he met the plaintiff and the latter refused to accept the summons was collusive. On that finding the court below decreed the plaintiffs' suit and granted the declaration and the injunction prayed for. 5. The point which has been urged before me on behalf of the appellant is that the ground about non-service of summons in proceedings under section 220 of U.P. Act I of 1951 had been agitated and decided against the respondents in the earlier proceedings for setting aside the ex-parte decree and hence the present suit based on the same ground was barred by res judicata. A reference may be made in this connection to the order dated 20-2-1966 (Exhibit 9) passed by the Assistant Collector on the application under order 9, rule 13 C.P.C. read with Section 151, C.P.C. The two points which had been canvassed before him were that the order dated 1-6-1954 in case No. 6 of 1954 had been obtained without due service of notice on the respondents i. e. the report of the process server about the refusal of the summons was collusive and had been fraudulently obtained, and further that the present respondents had no knowledge of the alleged delivery of possession on 25. 6. 1954 to the appellant and that they came to know of the ex-parte order only when the present appellant filed a complaint with the court of Sri G. S. Dayal, Magistrate, against them and they inspected the Misil Band Register on 27-5-1955 in order to ascertain the facts. The same day the application for restoration was made. The Assistant Collector repelled both the points raised by the respondents in their application under Order 9, Rule 13, C.P.C. He came to the conclusion that the process server took notice of the proceedings under section 220 of U.P. Act. I of 1951 to the respondents but they refused to accept the same. The Assistant Collector repelled both the points raised by the respondents in their application under Order 9, Rule 13, C.P.C. He came to the conclusion that the process server took notice of the proceedings under section 220 of U.P. Act. I of 1951 to the respondents but they refused to accept the same. The Assistant Collector also held that the Dakhalnama was a genuine document and Possession had been delivered through it to the appellant. As I have already pointed out, an appeal was filed by the respondents against the order of the Assistant Collector but the appeal was also dismissed by the Additional Commissioner and the findings recorded by the Assistant Collector were affirmed. In the circumstance the question arises as to whether the order of the Assistant Collector dated 20-2-1956 disposing of the application of the respondents under order 9, rule 13 C.P.C. could operate as res judicata in the suit giving rise to the present appeal. It would be clear from the narrative of facts given by me in the earlier part of this judgment that the sole basis of fraud alleged in the present suit was the non-service of the summons of proceeding under section 220 of the U.P. Act I of 1951 on the respondents and their being kept out of knowledge of those proceedings. Even in the alleged delivery of possession by means of Dakhalnama dated 25-6-1954 both these points had been categorically raised and decided. In the proceedings under Order 9, Rule 13, C.P.C. as well as in the present suit the averments of fraud were also confined to those two allegations. It is in the light of these salient features of the present case that the question of law as to whether the earlier findings would operate as res judicata had to be decided. 6. It is in the light of these salient features of the present case that the question of law as to whether the earlier findings would operate as res judicata had to be decided. 6. The fundamental principle of res judicata which is intended to attach finality to litigation between parties is embodied in Section 11 of the Code of Civil Procedure which is in the following terms :- "No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation ..............." A perusal of the above section would indicate that it postulates two important conditions. Firstly, it applies to suits and matters which were directly and substantially in issue in a former suit between the same parties. Secondly, the condition precedent to the applicability of section 11 is that such issue has been heard and finally decided by such court. These are among others the important requirements for attracting section 11 of the Code of Civil Procedure. so far as the first condition is concerned, the law on the point has been given a more liberal application by the decisions of the Supreme Court. Even in cases where section 11 of the Code may not in terms apply the underlying Principle about finality of decisions between the same parties in earlier litigation has been recognised and given effect to on the general principle or res judicata, notwithstanding the trammels of Section 11. In other words, the principle embodied in section 11 of the Code of Civil Procedure has been extended to proceedings other than suits as well. Thus, for instance, in Gulabchand v. State of Gujrat, A.I.R. 1965 S.C. 1153, the question arose as to whether the decision given in writ proceedings under Article 226 of the Constitution would operate as res judicata in a subsequent suit between the same parties with regard to the same matter and the question was affirmatively answered. Thus, for instance, in Gulabchand v. State of Gujrat, A.I.R. 1965 S.C. 1153, the question arose as to whether the decision given in writ proceedings under Article 226 of the Constitution would operate as res judicata in a subsequent suit between the same parties with regard to the same matter and the question was affirmatively answered. The law was summed up by Raghuber Dayal, J. in the following words :- "As a result of the above discussion we are of opinion that the provisions of section 11, C.P.C. are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any, previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the court deciding the matter formerly be competent to decide the subsequent suit for that the former proceeding and the subsequent suit have the same subject matter. The nature of the former proceeding is immaterial. We do not see any good reason to proclude such decision on matters in controversy in writ proceedings under Arts. 226 or 32 of the constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of finality of decisions after full contest. We, therefore, hold that on the general principle of res judicata, the decision of the High Court on , writ petition under Art. 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter." 7. The other ingredient of the principle of res judicata is, however, more vital and its fufilment has, therefore, been strictly enjoined. The essential condition for applying the principle of res judicata is that the matter sought to be raised in the later proceedings or suit must have been heard and decided in the earlier proceeding. This is a condition which cannot be waived and no party is entitled to invoke res judicata in the absence of this condition. The essential condition for applying the principle of res judicata is that the matter sought to be raised in the later proceedings or suit must have been heard and decided in the earlier proceeding. This is a condition which cannot be waived and no party is entitled to invoke res judicata in the absence of this condition. It is merely on extension of this fundamental principle as to whether the point, raised in the earlier proceedings were identical with the grounds of points on which the later suit or proceeding is based. In case they are exactly the same the conclusion would be irresistible that the decision in the former proceedings must be res judicata in the later suit, even though the technical or formal condition of the earlier litigation being actually a suit may not be satisfied. On the contrary, if the basis of the two proceedings are not identical in their scope and implication, the earlier decision might not be binding on the parties so as to preclude the plaintiff from bringing a subsequent suit. The reason is that in such a situation it would not be possible to say that the matter was actually `heard and decided'. The later proceeding would virtually call for a decision on points or matters which were not actually covered by the earlier finding. Therefore, the very foundation of the principle of res judicata would be wanting. Applying this principle to the plea of fraud, the relevant consideration would be as to whether in the miscellaneous proceedings under order 9 of the Code of Civil procedure the allegation of fraud was confined to the same ground on which the later suit asking for cancellation of the decree on the basis of fraud was founded. If the grounds forming the basis of the litigation are exactly the same, the principle of res judicata would certainly apply. But if the averments made in the plaint relating to fraud are wider in their scope an cover a larger area or are different in nature from the allegations of fraud made in the application under Order 9, Civil Procedure Code, the earlier finding could not be binding so as to preclude the later suit. It is on this very rationale that the decisions apparently laying down a contrary rule have been distinguished. 8. In a decision of the Privy Council in Khagendra Nath Mahata. It is on this very rationale that the decisions apparently laying down a contrary rule have been distinguished. 8. In a decision of the Privy Council in Khagendra Nath Mahata. v. Pran Nath Roy, 29 I.L.R. Calcutta 395 was held that a suit for setting aside an ex-parte decree and sale in execution of such decree as illegal, fraudulent and collusive was maintainable notwithstanding the fact that the plaintiff had been unsuccessful in applications under Secs. 108 and 311, C.P.C. to set aside the ex-parte decree and sale in execution. But the facts of that case were clearly distinguishable on the ground that whereas in the proceedings for setting aside the ex-parte decree were based entirely on the insufficiency of the service of summons, the plaint in the later suit attacked the decree by averring that the ex-parte decree had been obtained by Fraud from beginning to end. The averments in the suit were that in order to keep the plaintiff out of the way and prevent him from knowing what was going on, the defendant had induced his wife and other relations to institute proceedings to have the plaintiff declared a lunatic and by means of various threats caused him to leave his home and stay elsewhere in secrecy and in such circumstances the plaintiff was unable to take proper steps to defend the suit. Thus, it was clear that in the plaint the earlier decree was being impeached on grounds which were not conferred to an attack on the sufficiency of service of summons On the other hand fraud of a broader nature and much wider in its scope was leaded. In these circumstances the above case was distinguished in Laxmani Kuar v. Ram Gobind Singh, A.I.R. 1942 Patna 357, and it was held that those allegations could not be said to have been enquired into in the earlier proceedings and no decision could have been said to have been given on them. Referring to the above distinction the ratio of the case was stated in the following words :- "Where in a suit to set aside an ex-parte decree the main charge of fraud consists in the allegation that the summons had been fraudulently suppressed and that allegation was fully investigated and negatived in the proceedings under Or. Referring to the above distinction the ratio of the case was stated in the following words :- "Where in a suit to set aside an ex-parte decree the main charge of fraud consists in the allegation that the summons had been fraudulently suppressed and that allegation was fully investigated and negatived in the proceedings under Or. 9, R. 13 the matter is res judicata and the question of alleged fraudulently suppression of service cannot be reopened between the same parties in a subsequent suit." Tek Chand, J. expressed the same opinion in Ghulam Mohd. v. Mt. Bakthawaran, A.I.R. 1937 Lahore 614. In that case the defendant had applied for setting aside the ex-parte decree obtained against him on the ground of fraud in the service of summons on him. The application as well as the appeal against it were dismissed. The defendant then brought a suit on the same ground. It was held that such question could not be raised again in the subsequent suit as it was barred by res judicata and the suit as brought was therefore not maintainable. Tek Chand, J. who decided that case followed the two decisions of this court in Puran Chand v. Sheo Dat Rai, 4 A.L.J. 51 and Niadar Mal v. Raunak Husain, 4 A.L.J. 668. 9. In Puran Chand's, 4 A.L.J. 51 case it was held by a division Bench of this court that where the plaintiff claimed to have a decree set aside on the ground of fraud and the only fraud alleged was the non-service of summons and the plaintiff had previously unsuccessfully applied to set aside the ex-parte decree under. Sec. 108 of the Civil Procedure Code, the suit was not maintainable. The Privy Council's decision in Khagendra Nath Mahata's 29 I.L.R. Calcutta 395 case was distinguished on the ground that in the suit there were specified allegations of a wider nature that the earlier decree had been obtained by fraud whereas in the earlier proceedings the only fraud alleged was the one connected with the non-service of summons. The same rule was reiterated in a later decision of this court in Niadar Mal v. Raunak Husain, 4 A.L.J. 668, wherein it was observed that the decision of a Court refusing to set aside an ex-parte decree precludes the plaintiff from maintaining a suit to set aside that decree upon the same grounds. The same rule was reiterated in a later decision of this court in Niadar Mal v. Raunak Husain, 4 A.L.J. 668, wherein it was observed that the decision of a Court refusing to set aside an ex-parte decree precludes the plaintiff from maintaining a suit to set aside that decree upon the same grounds. The decision of the Privy Council in Khagendra Nath Mahata's 29 I.L.R. Calcutta 395 was again distinguished on facts. Banerji, J. adverted to an observation of their lordships of the Privy Council at page 399 in 29 I.L.R. Calcutta 395 which was most significant and contained in essence the test which must be applied for determining whet the bar of res judicata could be applied to the facts of a particular case or not. The observation was to the following effect :- "it is, therefore, necessary to ascertain what are the true grounds and scop of the present suit in order to see whether the refusal of the application unfit the sections specified has already determined the question now raised." This in substance emphasised the rule to which I have already adverted in the foregoing part of my judgment namely the answer to the question as to whether the res judicata applied or not would depend on whether the allegation in the suit were the same as those in application under Order 9, Rule 13, C.P. and whether those allegations had been heard and decided in the earlier proceedings. The rule, therefore, which emerges from the foregoing discussion is that where in a later suit an ex-parte decree is impeached on the solitary ground of non-service of summons, which point had been actually canvassed and decided against the later plaintiff in proceedings under Order 9, Rule 13, C.P.C the suit would not be maintainable and would be barred by res judicata. Th facts of the instant case came strictly within the above rule and, therefore, it must be held that the respondents' suit for a declaration that the decree passed in the earlier suit was null and void on the basis of fraud and for an injunction restraining the appellant was, therefore, barred by res judicata. 10. The result is that this appeal is allowed and the decree passed by the court below is set aside but no order is made as to costs.