JUDGMENT Arun Kumar Goel, J. — Before adverting to the respective contentions urged at the time of hearing of this appeal, facts on which parties are not at variance, need to be briefly noted. 2. Prem Raj and Baldev Verma appellant and respondent respectively, jointly owned land comprised in Khasra Nos. 911, 912, 913/1, 913/2, 913/ 3, 914/1, 914/2, 915/1, 915/2, 916/1, 912/3, 918/2, 919/2 plots 13 measuring 5486 sq. meters situate at village Basal Patti Kather, Pargana Sumna, Tehsil and District Solan. According to appellant, hereinafter referred to as the Defendant, this land is joint. Whereas according to respondent, hereinafter referred to as the Plaintiff it stood partitioned and both the parties were in separate and exclusive possession of the land which had fallen to their respective shares.1 3. Record of the case further shows that vide Ext. PX/2 statement was made on 31.5.1984 by both the parties before the patwari which was recorded in the Rapat Rojnamcha Waquati. On the basis of this report, Mutation No. 151 dated 12.6.1984 was attested. Pursuant to this land measuring 2748 sq. meters comprised in Khasra Nos. 911 and 912/2 Kita 2 fell to the share of the defendant and the remaining land measuring 2738 sq. meters fell to the share of the plaintiff. 4. This mutation was challenged in an appeal by the defendant and vide order dated 28.2.1989 passed by SDM (Collector), Solan, it was set aside while allowing the appeal of the defendant. Consequently, the case was remanded to Assistant Collector 2nd Grade, Solan for fresh enquiry and decision after affording opportunity to the appellant (defendant) of being heard. At the time of hearing of this appeal, the learned Counsel appearing for both the parties were not in a position to state what happened thereafter. Certified copy of this order is Ext. PW-l/A on the record of this case. 5. Learned Counsel for the parties were further not at variance that the defendant filed suit No. 294/1 of 1989 in the court of Senior Sub Judge, Solan on 1.7.1989. A certified copy of the plaint in this suit is Ext. PX/ 4. Relief claimed in this suit was in the following terms:— "(a) That the land comprised in Khasra Nos. 919/2, 912, 915/1, 915/ 2, 916/1, 916/3, 918/2, 911, 913/1, 913/2, 913/3, 914/1, 914/2, plots 13 measuring 5486 sq. meters entered at Khata No. 343, Khatauni Nos. 906 min. A certified copy of the plaint in this suit is Ext. PX/ 4. Relief claimed in this suit was in the following terms:— "(a) That the land comprised in Khasra Nos. 919/2, 912, 915/1, 915/ 2, 916/1, 916/3, 918/2, 911, 913/1, 913/2, 913/3, 914/1, 914/2, plots 13 measuring 5486 sq. meters entered at Khata No. 343, Khatauni Nos. 906 min. 907-min and 908-min, situated at Village Basal, Patti Kather, Pargana Sumna, Tehsil and District Solan is the joint property of plaintiff and defendant No. 1 and the mutation No. 151 dated 12.6.1984 showing the partition of the same is illegal, void, inoperative and is not binding against the rights of plaintiff and the sale deed No. 80 registered in the office of Sub Registrar, Solan on 3.2.1988 in respect of land comprised in Khasra Nos. 1164/ 915/1 and 1166/916/1, measuring 108 sq. meters in favour of defendant No. 2 is void, illegal, inoperative and is not binding against the rights of the plaintiff. (b) Decree for permanent prohibitory injunction restraining the defendant No. l from transferring or otherwise alienating any portion of the land in dispute or contracting any bargain with any prospective purchaser in any manner and restraining defendants from changing the nature of or development the land mentioned above in any manner” 6. Plaintiff contested the claim of the defendants in this suit. Similarly, Smt. Nisha, defendant No. 2 (sale in whose favour was challenged) also contested the claim. Certified copy of the written statement in this case is Ext. PX/6. 7. In this suit following issues were framed as contained in Ext. PX/ 7, are as under: 1. Whether the plaintiff is estopped by his act, conduct and acquiescence from filing the suit as alleged? OPD 2. Whether the suit in the present form is not maintainable? OPD 3. Whether the mutation No. 151 attested on 12.6.1983 qua the partition of suit land is void, inoperative and not binding as alleged? OPD 4. If Issue No. 3 is proved in affirmative, whether the suit land is joint between the defendant and plaintiff? OPP 5. Whether the sale deed executed by defendant No. 1 in favour of defendant No. 2 of the specific portion out of the suit land is illegal, void and inoperative as alleged? OPP 6. Whether the plaintiff is entitled to permanent prohibitory injunction as prayed? OPP 7. Relief. OPP 5. Whether the sale deed executed by defendant No. 1 in favour of defendant No. 2 of the specific portion out of the suit land is illegal, void and inoperative as alleged? OPP 6. Whether the plaintiff is entitled to permanent prohibitory injunction as prayed? OPP 7. Relief. Finally this suit was dismissed on 23.7.1990 vide judgment Ext. PZ, in the following terms: "The plaintiffs evidence not present despite of last opportunity. Since there is no evidence of the plaintiff on the file in support of the issues, therefore, the suit is dismissed. The file be consigned to the Record Room." 8. In the aforesaid background, plaintiff filed suit No. 357/1 of 1989 on 26.8.1989. In this suit he sought declaration that the partition was affected as per mutation No. 151 dated 12.6.1984 (Ext. PX/1) on the basis of report No. 209 Ext. PX/2 supra. Thereafter, they are in possession of their respective shares and plaintiff is in possession of land measuring 2738 sq. meters and for perpetual injunction restraining the defendant from interfering in the suit land in any manner whatsoever. Basis of claim made in the plaint was that the joint holding was partitioned by the parties and this was aimed at avoiding bickering between them. Thus report was made in the Rojnamcha as aforesaid which was followed by mutation referred to hereinabove. 9. Further case of the plaintiff was that the defendant got demarcation of the land which came to him after partition. However, he became greedy and therefore started holding out that the property is joint between plaintiff and defendant and it continued to be so though entry had been incorporated in the record-of-rights. With a view to disturb the peaceful possession of the plaintiff, defendant made an attempt on 2.7.1989 therefore cause of action arose. According to plaintiff, defendant had no right to do so. Besides this, with respect to earlier suit referred to hereinabove, as filed by the defendant, it was urged that the decision in this suit operates as res judicata against him (defendant). He is further estopped from contesting the claim of the plaintiff in the present suit. Thus decree as aforesaid was prayed. Plaint in this case was presented on 2.8.1989 in the court below. 10. Defendant contested and resisted the claim of the plaintiff and pleaded that he has no cause of action to maintain the suit. He is further estopped from contesting the claim of the plaintiff in the present suit. Thus decree as aforesaid was prayed. Plaint in this case was presented on 2.8.1989 in the court below. 10. Defendant contested and resisted the claim of the plaintiff and pleaded that he has no cause of action to maintain the suit. Mutation No. 151 dated 12.6.1984 stood set aside vide order dated 28.2.1989 supra. Plea of partition was denied. It was further urged that the plaintiff colluded with the Patwari halqa and without the knowledge and consent of the defendant got entered report No. 209 referred to above and thereafter mutation was also the result of collusion without the knowledge of the defendant. Dismissal of earlier suit filed by the defendant was not disputed. Since defendant No. 2 in the earlier suit Smt. Nisha had raised construction before interim order under Order 39 Rules 1 and 2 CPC be served upon her, therefore, the defendant did not proceed further in the suit. 11. Replication was filed on behalf of the plaintiff and pleas urged in the written statement which were contrary to the plaint were denied and averments made in the plaint were reiterated. 12. On the basis of these pleadings, parties went to trial on following issues: 1. Whether the suit in the present form is not maintainable? OPD 2. Whether the plaintiff is in possession of the suit land as exclusive owner by virtue of land partition? OPP 3. Relief. 13. After recording evidence and on examination of entire record including oral and documentary evidence, trial court dismissed the suit. Plaintiff felt aggrieved by the said judgment and decree challenged the same before the first appellate Court. By means of impugned judgment and decree, the appeal has been allowed thereby setting aside the decree of the trial Court and consequently the suit of the plaintiff had been decreed. Hence this second appeal at the instance of the defendant. 14. This appeal was admitted on 14.12.1995 on the following substantial questions of law: 1. Whether dismissal of a suit under Order 17 Rule 3 of the Code of Civil Procedure would a decree so as to create a bar under Section 11 of the Code of Civil Procedure for defending the suit in which the title of the plaintiff is challenged? 2. Whether dismissal of a suit under Order 17 Rule 3 of the Code of Civil Procedure would a decree so as to create a bar under Section 11 of the Code of Civil Procedure for defending the suit in which the title of the plaintiff is challenged? 2. Whether the report of the Patwari made in Rojnamcha Vakyati is admissible under Section 35 of Indian Evidence Act and has the presumption of truth attached to it? 3. Whether the report Rojnamcha Vakyati looses its significance after setting aside the mutation order by the competent appellate authority, when the said report was the basis of entering and attesting the same mutation? 4. Whether the lower appellate Court fell in error in putting reliance on the mutation evidencing the partition, when the mutation itself was set aside by the appellate Court? 5. Whether in the absence of the specific issue regarding applicability of doctrine of res judicata, the learned Lower Appellate Court could have reversed the judgment and decree passed by the learned trial Court? 6. Whether the judgment in the previous suit without giving any finding on the specific issues merely ordering the dismissal of the suit would attract the provisions of Section 11 of the Code of Civil Procedure to debar the defendant from defending the subsequent suit between the same parties? 15. At the time of hearing of this appeal, learned Senior Advocate for the defendant, urged that the appellate Court below has fallen into error by allowing the appeal and thereby decreeing the suit of the plaintiff. According to him, a perusal of the record of the earlier suit (to which a reference has been made hereinabove) clearly indicates that while dismissing the same, issues framed in it have not been determined and decided on merits. Besides this, Ex. PZ the dismissal order passed in the earlier suit was for non-production of evidence. Cause of action in the earlier suit and the present suit is different. Therefore, there is no question of applicability of Section 11 of the Code of Civil Procedure and/or principle of res judicata being attracted in the circumstances of this case. According to him, judgment and decree passed by the first appellate Court deserves to be set aside and that of the trial Court restored. 16. On the other hand, Mr. Therefore, there is no question of applicability of Section 11 of the Code of Civil Procedure and/or principle of res judicata being attracted in the circumstances of this case. According to him, judgment and decree passed by the first appellate Court deserves to be set aside and that of the trial Court restored. 16. On the other hand, Mr. Anish Garg, learned Counsel appearing for the plaintiff while controverting the pleas urged on behalf of the defendant, submitted that this is a case which is covered by Section 11 Explanation (V) of the Code of Civil Procedure, as Ext. PX was passed according to him, under Order 17 Rule 3 of the CPC which tantamount to a decree. In any case, if the defendant was aggrieved by the said decision, he had a remedy of appeal but same having attained finality inter se parties, further tantamount to a final decision of the controversy involved between the parties. According to him what was the plank of the defendant in his suit supra, is his ground of defence for the present litigation. According to him in both the suits plea, whether there is a partition of the suit land and parties have come into their respective separate possession pursuant to it was the core question to be determined. Thus, the ground on which defendant is contesting this suit was the ground of his filing the suit. Therefore, he stated that there is no infirmity as well as question of law much less a substantial question of law within the meaning of Section 100 of the CPC requiring adjudication in these proceedings. 17. Before adverting further in the case provisions of Order 17 Rule 3 and Section 11 of the Code of Civil Procedure need to be extracted: Order XVII Rule 3 "3. Court may proceed notwithstanding either party fails to produce evidence, etc.—Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, (the Court may, notwithstanding such default,— (a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is, absent, proceed under Rule 2). Section 11 Res-judicata.—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 I, II, III, IV xxxxx. Explanation (V).—Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused." 18. After hearing the learned Counsel for the parties, it is felt that in this case, substantial questions of law Nos. 1, 5 and 6 are material for disposal of this appeal. So far questions No. 2 to 4 are concerned, they are neither substantial questions of law and nor are being gone into. 19. As already noted in Ex. PX/7, issues No. 3 and 4 were specific regarding mutation No. 151 dated 12.6.1983 and Issue No. 4 was regarding property being joint between the parties in that suit (who are plaintiff and defendant respectively in the present appeal). Thus it is obvious that defendant had a chance to have established the contentions raised by him in his plaint and thus invite findings on both these issues amongst others. In the event of his success on Issue No. 4, he could have asked for giving relief of declaration of sale deed by present plaintiff in favour of Smt. Nisha (who both were defendants No. 1 and 2 respectively in the earlier suit filed by the defendant). He did not lead any evidence in the matter. 20. On the other hand defendant was satisfied with the decision in the earlier suit. In addition to plaintiff appearing as PW-1, he examined Man Singh, Patwari (PW-2) and Shri K.C. Dutta (PW-1) Sh. Asha Ram (PW-2), Sh. Vinod Prashar (PW-3), (all these three witnesses were examined in rebuttal). Whereas defendant appeared as his own witness and closed his evidence. In addition to documents referred to hereinabove, defendant was confronted with Ex. In addition to plaintiff appearing as PW-1, he examined Man Singh, Patwari (PW-2) and Shri K.C. Dutta (PW-1) Sh. Asha Ram (PW-2), Sh. Vinod Prashar (PW-3), (all these three witnesses were examined in rebuttal). Whereas defendant appeared as his own witness and closed his evidence. In addition to documents referred to hereinabove, defendant was confronted with Ex. PX/3, which is a carbon copy of the communication by him addressed to Executive Engineer and was received vide diary No. 2531 dated 18.5.1984 as is evident from the endorsement made on it. This communication is in the following terms: "To The Executive Engineer, National Highway Division, H.P. PWD, Solan. Sub : Const, of Retaining wall on unauthorised land. With due respect, I want to lay down following a few lines under your kind consideration. I am a resident of Solan having land on Solan Bye Pass. During the period when Sh. PC. Bisht was Executive Engineer, National High Way Division at Solan a retaining wall was proposed to be constructed at RD2/060. The work of which was allotted to Sh. T.C. Jhina contractor. During that period I had a talk with Sh. PC. Bisht and with the understanding that if some of my land would fall under retaining wall either in lieu of this land compensation at the market rates will be paid or land equivalent to land involved would be given. Now as I have already written to you on 3.3.1984 that my land has been acquired without paying compensation. The proposed retaining wall has been constructed resulting acquiring my land. Hence it is requested that your personal attention is required and the compensation as per market rates be paid at the earliest so that the justice be given to me. I hope that this letter of mine shall be given due and proper attention at your kind hands so that I may not suffer any more. Dy. No. 2531 Dt. 18.5.1984 Thanking you," 21. Plaintiff has pledged his oath. When a reference is made to his cross-examination, nothing could be extracted so as to dislodge his claim as set up in the plaint as well as what he has stated in his examination-in-chief. Mansa Ram (PW-2) has stated that he went on the spot at the request of both the parties and he measured the land at the spot and prepared tatima which was issued to them. Mansa Ram (PW-2) has stated that he went on the spot at the request of both the parties and he measured the land at the spot and prepared tatima which was issued to them. Land was partitioned and thereafter, after 12-15 days they came to the Patwar-khana and got the mutation entered. On the basis of the earlier partition, mutation was entered. At the instance of oral request by both the sides regarding partition, as per Tatima entry was made and mutation was entered. It was attested by the Tehsildar after verifying the facts on the spot. Though in cross-examination, he has stated that he is making the statement without record. PW-1 in rebuttal has stated that he attested the mutation and he knew the parties. Mutation was sanctioned as per record. PW-2 has stated that Girdwari of both the parties is separate since 1984. According to him Baldev Verma plaintiff has planted the trees. Possession of both the parties is separate. He admitted that mutation has been set aside. PW-3 admitted that he purchased the land from the plaintiff in the year 1988 in his wifes name and it stood entered in her name. In case it was joint, he would not have purchased the same. Now building has been constructed on it. According to him, he is has no dispute with Prem Raj (defendant). Land was got demarcated by him. 22. On the other hand, defendant Prem Raj while appearing as DW-1 has stated that the land is not partitioned and it was jointly sold to Dutta, joshi and Dr. Lamba. According to him, neither he ever went to Patwari nor made any request for its partition. He further claimed that he never appeared before Dutta Sahib. He claimed that mutation has been set aside in appeal. According to him, he has filed an application for partition, which is pending. He admitted filing the suit as referred to hereinabove. Reason given for not prosecuting the said suit was that the land sold by plaintiff to Mrs. Prashar was to be deducted out of the share of the plaintiff. He admitted the plaint, written statements and issues as also the judgment, which were duly exhibited as referred to hereinabove. He also admitted that Ext. PX/3, but stated that it was never submitted in the office. Prashar was to be deducted out of the share of the plaintiff. He admitted the plaint, written statements and issues as also the judgment, which were duly exhibited as referred to hereinabove. He also admitted that Ext. PX/3, but stated that it was never submitted in the office. He claimed that when earlier suit was filed by him, appeal against mutation was pending before the SDM. He claimed to have filed the suit in August, 1988 (which is factually incorrect being contrary to the endorsement on Ex. PX/4 photostat certified copy of the plaint in the earlier suit). He denied the suggestion of the plaintiff that house has been built by the latter over the land fallen to his share. This is the entire oral and documentary evidence. 23. As per provisions of Order 17 Rule 3(a), trial Court had no option but for proceeding in accordance with law when evidence was not produced by the parties before it. In accordance with the mandate of law, it has chosen to proceed to decide the suit forthwith. This resulted in passing of the judgment Ex. PZ. In this context, it may be noted that provisions (of Order 17 Rule 3 CPC were amended vide Act 104 of 1976. Defendant, failed to produce his evidence as was necessary to the further progress of the suit for which time had been allowed. Had the Court adjourned the case and/or in case defendant was not present in his suit supra, situation would have been different. Therefore, there is nothing wrong in the matter having been decided forthwith. What is the affect of earlier decision as well as of the provision of Section 11 Explanation (V) CPC supra will be dealt with hereinafter. 24. A plain reading of Explanation (V) extracted above clearly shows that the relief which was expressly claimed by the defendant in the suit filed by him on the issues whereon they were at variance, relief could be determined by the Court. It has not been expressly granted. Thus for the purpose of Section 11 CPC, the same shall be deemed to have been refused. In the face of this position, the plea of Mr. Gupta learned Senior Counsel appearing for the defendant that since issue had not been determined on merits, as such, does not operate as res judicata cannot be accepted. 25. Thus for the purpose of Section 11 CPC, the same shall be deemed to have been refused. In the face of this position, the plea of Mr. Gupta learned Senior Counsel appearing for the defendant that since issue had not been determined on merits, as such, does not operate as res judicata cannot be accepted. 25. In this context, it may be noted that the doctrine of res judicata is founded on equity, justice, fair play and good conscience. It is based partly on the maxim of Roman Jurisprudence "interest reipublicae ut sit finis litum", which means that concern the State that there be an end to law suits; and partly on maxim nemo debet bix vexari pro una et eadem cause", which means that no man should be vexed twice over for the same cause. The principle is founded on ancient precedents, has been held to have been dictated by the wisdom and is applicable for all times. 26. It may appropriately be observed in this behalf that besides above, principle of res judicata is based on public policy also. It is aimed at judicial verdict attaining finality at some stage. 27. In case the argument of the learned Senior Counsel is taken to its logical end then there would be no end to the litigation and an unsuccessful litigant like defendant can keep merrily going on with the filing of cases one after the other till and so long he is unable to get desired results. In this behalf, it may also be appropriately noted that the primary requirement of res judicata is title to the property. It was a question which was directly in issue in the suit filed by the defendant referred to hereinabove. Court at Solan before whom it was filed was competent to have adjudicated the same. Parties were also the same in the earlier suit of the defendant as well as the present suit. Thus, simply because decision on merits had not been given will not defeat Ex. PZ, whereby the earlier suit of the defendant stood dismissed for non production of evidence, this fact coupled with the Explanation (V) supra, clearly shows that the relief claimed by the defendant in his suit was declined to him. 28. Thus, simply because decision on merits had not been given will not defeat Ex. PZ, whereby the earlier suit of the defendant stood dismissed for non production of evidence, this fact coupled with the Explanation (V) supra, clearly shows that the relief claimed by the defendant in his suit was declined to him. 28. Needless to point out in this behalf that when language is simple and meaning is clear nothing needs to be read down in the provision nor external aids are required for interpreting such a provision of law. Once this conclusion is arrived at, what follows is that Section 11 Explanation (V) of the Code of Civil Procedure clearly covers the present case. 29. On behalf of the defendant, Mr. Bhupender Gupta, learned Senior Advocate, referred to some precedents, to which a reference will be made hereinafter. 30. First decision relied upon was in case Salo v. Munshi Ram and others, AIR 1985 H.R 85. That was held in Paras 17 and 18 in it was in the following terms: "17. In AIR 1958 Patna 95 {Sheikh Habibulla v. Jamuna Singh) it was held that the dismissal of a suit on the ground of abatement cannot operate as res jndicata though a second suit on the same cause of action will of course be barred, the reason being that res judicata essentially arises out of a decision given on merits while a bar against fresh action is founded on the provision of law as laid down in the C.P.C. and not necessarily on an order which is tantamount to a final decision on merit though it is true that for certain purposes that order may operate as judgment. 18. 18. In AIR 1966 SC 1332 (Sheodam Singh v. Daryao Kumuar) it was held that if the decision in the former suit is not on merits, then the case cannot be said to have been heard and firially decided,; The examples of such cases could be that the former suit was dismissed by the trial Court for want of jurisdiction, o£ for default of plaintiff s appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness or on the ground that the suit was badly framed, or on the ground that a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on that ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res jndicata in a subsequent suit/7 This decision does not improve the case of defendant in view of the discussion in this judgment. 31. In Ram Nagendra Tiwary and others v. Jagdamba Ojhian and others, AIR 1984 Patna 316, plea of res judicata was negatived because the court trying prior suit was not competent to try the same, as such it was held that Section 11 is in-applicable. This is not the situation in the present appeal. Moreover, such an argument was not raised on behalf of defendant. 32. Similarly, reliance placed on behalf of the defendant on State of Maharashtra and another v. M/s. National Construction Company, Bombay and mother, AIR 1996 SC 2367, is also ill founded. In this case the suit was filed by the State of Maharashtra invoking the bank guarantee furnished by National Construction Company earlier against the Bank only. This was a short cause suit in the Bombay High Court. This was dismissed for want of non joinder of party holding that the contractor was a necessary party. Thereafter, suit was filed by impleading the Bank as well as Contractor. This was a short cause suit in the Bombay High Court. This was dismissed for want of non joinder of party holding that the contractor was a necessary party. Thereafter, suit was filed by impleading the Bank as well as Contractor. In this background, after placing reliance on the decision of Sheodam Singh v. Daryao Kunwar supra and on Inacio Martins v. Narayan Hari Naik, (1993) 3 SCC 123, what was held and is relevant in the present case is as under para 8. 33. "This statement of the law by the High Court is, with respect, incorrect of the decision of this Court in Sheodhan Singh v. Daryo Kunwar, AIR 1966 SC 1332 at p. 1336: (1966) 3 SCR 300 at 307, where, while considering the meaning of the words "heard and finally decided", used in Section 11 of the Code, it was held:- "Where, for example, the former suit was dismissed by the trial Court for want of jurisdiction .......or on the ground of non-joinder of parties...... and the dismissal is confirmed in appeal (if any), the decision not being on the merits, would not be res judicata in a subsequent suit". (Emphasis supplied) 34. This Court in its recent decision, Inacio Martins v. Narayan Hari Naik, (1993) 3 SCC 123 : (1993) AIR SCW 2163, has reiterated this propositions. It is, therefore, clear that the dismissal of the Short Cause Suit and the subsequent appeal could not have operated as a bar to Spl. Civil Suit No. 27/83. The plea based on the principle of res judicata fails.” A reference to this decision clearly shows that it does not in any manner advance the case of the defendant. 35. A case nearer to the facts of the present case is Chamaru v. Chippal, 1973 Sim. L.J. (H.R) 146. In this case order passed by the Court in the earlier suit was in the following terms: "Counsel for the parties present. Neither the plaintiff nor his evidence present. Nor any summoned through Court. The suit is accordingly dismissed under Order 17, Rule 3, CPC. Announced. The file after completion be consigned. Sd/- C.S. Sauhta, Sub Judge, 1st Class, Kangra." In this background, what was held in the second appeal by this court was as under: "9. Neither the plaintiff nor his evidence present. Nor any summoned through Court. The suit is accordingly dismissed under Order 17, Rule 3, CPC. Announced. The file after completion be consigned. Sd/- C.S. Sauhta, Sub Judge, 1st Class, Kangra." In this background, what was held in the second appeal by this court was as under: "9. It is next contended by the appellant that as no evidence had been led it was not possible to try the suit on its merits and, therefore, | also the suit could not have been dismissed under Order 17 Rule 3. Now, merely because the parties have led no evidence in a suit does not mean that the suit cannot be dismissed. A plaintiff may file a suit and then be unable to produce any evidence in support of his case. It is open to the court to dismiss the suit on its merits, j Dismissal on the merits implies, in the circumstances, that the allegations contained in the plaint were not made out, and the trial Court, therefore, has dismissed the suit." 36. In case Mahalingeshzvara Devaru and another v. Seetharama Bhatta and another, AIR 1978 Karnataka 213, what was observed and is relevant in the present case is as under: The principle of res judicata is not affected by a subsequent contrary view taken by a superior Court in any other case. A wrong decision by a Court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides. Therefore, even if a decision happens to be wrong in view of the later judgment of the High Court, it is binding between the parties and its legal effect remains the same whether the reason for the decision was sound or not. AIR 1966 SC 1061, Rel. on." 37. In C. Chennaiya Naidu v. Panchayat Board, Venukadathampatti, AIR 1979 Madras 135, while drawing distinction in a order passed under Order 17 Rules 2 and 3, it was held that when both the parties and their counsel were present in Court. The case was called. Order 17 Rule 2 CPC would not apply and the case would be covered under Order 17 Rule 2 CPC. The case was called. Order 17 Rule 2 CPC would not apply and the case would be covered under Order 17 Rule 2 CPC. In this background, it was held that the District Judge was right in coming to the conclusion that the appeal was competent. 38. In Sushil Kumar Mehta v. Gobind Ram Bohra (dead) through his LRs, (1990) 1 SCC 193, it was held as under: "26. Thus it is settled law that normally a decree passed by a court of competent jurisdiction, after adjudication on merits of the rights of the parties, operates as res judicata in a subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest from the parties. Its validity should be assailed only in an appeal or revision as the case may be. In subsequent proceedings its validity cannot be questioned. A decree passed by a court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the Court to pass a decree which cannot be cured by consent or waiver of the party if the court has jurisdiction but there is defect in its exercise which does not go to the root of its authority, such a defect like pecuniary or territorial could be waived by the party. They could be corrected by way of appropriate plea as its inception or in appellate or revisional forums, provided law permits. The doctrine of res judicata under Section 11 CPC is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus the decision of a competent court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them. The reason is obvious; a pure question of law unrelated to facts which are the basis or foundation of a right, cannot be deemed to be a matter in issue. The principle of res judicata is a facet of procedure but not of substantive law. The decision on an issue of law founded on fact in issue would operate as res judicata. But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A question relating to jurisdiction of a court or interpretation of provisions of a statute can not be deemed to have been finally determined by an erroneous decision of a Court. Therefore, the doctrine of res judicata does not apply to a case for decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare, legislation are created, the doctrine of waiver also does not apply to a case of decree where the Court inherently lacks jurisdiction/ 39. It is no bodys case that decision in the suit of defendant is a nullity. Rather defendant has given reasons for not prosecuting the said suit. 40. Where certain statutory rights in a welfare, legislation are created, the doctrine of waiver also does not apply to a case of decree where the Court inherently lacks jurisdiction/ 39. It is no bodys case that decision in the suit of defendant is a nullity. Rather defendant has given reasons for not prosecuting the said suit. 40. A Full Bench of Kerala High Court in Kadapurath Mam Khalid v. Beemapura Palamkakkada Sulekha and others, AIR 1986 Kerala 251, held as under: To press into service the doctrine of res judicata or estoppel by record it is enough if the party concerned shows that the parties to both the suits were the same, and are persons whose names are on the record at the time of the decision, even if a party may be a person who got intervened in the suit." ...Where two tarvards were the parties in both the earlier and subsequent suits the judgment in the earlier suit will not cease to operate as res judicata merely because a finding is recorded in the earlier suit that the power holder of the Karanavan of the tarwad, could not have filed the suit on behalf of the tarwad as the properties did not belong to the tarwad. The parties being the same the subsequent suit will not be maintainable." 14. ......”What is required to be proved or established, to hold that there is bar of res judicata for the subsequent suit, is that in both the suits, the title of the parties agitated, is identical, but not the identity of the actual properties involved in the two litigation. It has been so declared by the Supreme Court in Ram Lakshmi Dasi v. Banamali Sen, AJR 1953 SC 33. The dictum reads:— The test of res jndicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases." 41. In Nikunja Bihari Das v. Jatindra Nath Kar and others, AIR 1956 Calcutta 613, while considering Section 11 of the CPC, it was observed as under: "A decision by necessary implication is as much res-judicata as an express decision. In Nikunja Bihari Das v. Jatindra Nath Kar and others, AIR 1956 Calcutta 613, while considering Section 11 of the CPC, it was observed as under: "A decision by necessary implication is as much res-judicata as an express decision. That this is so in the case where Explanation IV of Section 11, Civil Procedure Code, has to be considered, there can be no doubt, but even in other cases where a matter has been raised in the pleadings but there is no express decision but there is a decision by necessary implication, the Courts have? always held that the principle of res jndicata is applicable." 42. Law declared by this judgment squarely covers the facts of the present case and is thus applicable to all fours. A Division Bench of Oudh High Court in Har Dayal v. Ram Ghulam, AIR 1944 Oudh 39, held as under: "In order that the provisions of Rule 3 should apply with full force and effect it is not necessary that there should be actual decision on the merits. The words "to comply with any previous order" in Order 17, Rule 3 are sufficiently general to include the order for payment of costs occasioned by an adjournment. An order that upon non-payment of the costs of adjournment (to enable the plaintiff to implead a certain person as a necessary party) the suit shall stand dismissed falls within the purview of Order 17, Rule 3 and not Rule 1. The Court in dismissing the suit in consequence of that order, must, therefore, be deemed to have decided it on merits. As the order falls within Order 17, Rule 3, the dismissal of the suit operates as a bar to the maintainability of the second suit." 43. Examining the present appeal in the light of the facts as enumerated hereinabove as well as on the basis of the decisions of different courts including Supreme Court of India, I am of the considered view that the relief having been not expressly allowed in the earlier suit filed by the defendant shall be deemed to have been declined to him and thus mere non decision of all of those issues as was urged on his behalf of the defendant does not stop the operation of Section 11 Explanation (V) of the Code of Civil Procedure. Once the judgment was passed under Order 17 Rule 3 CPC particularly when identity of title to property in both the suits was/is the same, parties were/are the same and Court was competent to have adjudicated; then on the basis of the legal position explained above it can be safely said that the claim of the defendant stood negatived in the earlier suit. Therefore, questions No. 1 and 6 are decided against the defendant. 44. Now coming to question No. 5, learned Counsel for the plaintiff stated that in view of the admitted facts, particularly regarding the initiation of previous litigation, and the parties having gone to the trial knowing fully well that plea has been raised specifically by the plaintiff in the amended plaint and thereafter the defendant having controverted the same; besides this defendant having given reasons for not prosecuting the earlier suit, mere non framing of issue regarding res judicata is of no significance and is also not fatal to the trial of the suit in the present case. See, Nedunuri Kamesiuammma v. Sampati Subba Rao, AIR 1963 SC 884. That being so, non framing of issue regarding res judicata in the circumstances of the case is not at all material nor any party has been prejudiced for such an omission, as such the question No. 5 is also decided against the defendant. 45. No other point is urged in support of the case. 46. In view of the aforesaid discussion, there is no merit in this appeal, which is accordingly dismissed. Defendant will pay the cost of the appeal to the plaintiff through out. CMP No. 688 of 1997 No orders in view of the disposal of the main appeal. Appeal dismissed. -