Notes to Sec. 13 q. v. next page.

(f) Res Judicata is not a plea to the jurisdiction, but a plea in bar. It is strictly therefore out of place here, but the framers of the Code give as their reasons, that the corresponding section 2 of Act VIII, 1859 stood in the forefront of the former Code; and (2) that the convenience of having so important a clause in a prominent position seemed to them to outweigh considerations of logical arrangement. This section embodies two rules of law. When it forbids a court to try a suit, in which the matter directly and substantially in issue shall have been heard &c., it proceeds upon the maxim, NEMO DEBET BIS VEXARI PRO UNA ET EADEM CAUSA. When similarly it forbids the trial of an issue, in which the matter directly and substantially in issue shall have been heard &c, it enacts the rule stated by Vinnius EXCEPTIO REI JUDICATÆ NON ALITER AGENTI NOCET QUAM S1 EADEM QUÆSTIO INTER EASDEM PERSONAS REVOCETUR, ITAQUE, ITA DEMUM NOCET SI OMNIA SINT EADEM, IDEM CORPUS, EADEM QUANTITAS, IDEM JUS EADEM CAUSA PETENDI, EADEM QUE CONDITIO PER SONARUM.

It will conduce to a better under

standing of the section, if the principle be first laid down, and then each clause of the section be read in the light of the explanation linked on to it. The principle then is :That, where a matter, which in the course of litigation, must necessarily have been presented to a competent Court for determination, has been heard and finally determined, the persons, who are parties to the proceedings and all parties claiming under or through them are,

unless they can show another title to that relief, precluded from again putting the same matter in issue; nor can they claim the relief claimed in the former proceedings.

Now to analyze the above ruleNo Court shall try any suits in which the matter directly and substantially in issue &c.,

Explanation I. lays down, that the

matter must in the former suit have been alleged by one party, and either denied or confessed expressly or impliedly by the other. But in the case of a suit this is enlarged by Explanation II., which deems, as matter directly and substantially in issue, any matter, which might and ought to have been made ground of defence, or attack in such former suit. The effect this produces on a case will be best illustrated by an extract from the case Denobandi Chowdhri v. Kristomani Dasi, which will be found in the I. C. L. R. Vol. II. p. 152. The plaintiff was a Hindu widow, by name Kristomani Dasi. The defendant Denobandi Chowdhri was her daughter's husband. Years after both the husband of the plaintiff and the wife of the defendant had died, plaintiff brought a suit to recover certain property from the defendant. Defendant admit. ted that this property had originally belonged to plaintiff, but alleged that it had been conveyed by plaintiff's husband to defendant's wife as her stridhan. The Court found the deed genuine, and dismissed the suit. The plaintiff then brought the present suit to recover the same property on the ground that she, and not the defendant's husband, was heiress. The Chief Justice distinguishing the case from that of Umatara Debi v. Kishna Karuna Dasi held, that the plaintiff was not barred in her present claim. The rest of the Judges however held unani

mously that the plaintiff, being cognizant of both her grounds of title, when she brought her first suit, was bound then to put forth her strongest or her real title. Following the words of the old Code they found her cause of action the same and held the suit barred. The Chief Justice construing the words "cause of action" to mean the grounds upon which a claim is founded was compelled to differ. Whether this was or was not the law before, the new Code leaves no room for doubt that it is the law now.

The next point is what meaning is to be attached to the words directly and substantially in issue. First then they do not mean issues in law, but only issues in fact. They include all issues that are or may properly be raised in a case, all those material propositions of fact which a plaintiff must allege, in order to show a right to sue, or a defendant plead in order to answer the claim made against him, but they include no They do not include those matters which are introduced to prove indirectly a material issue. Heard. With this read Ss. 53, 54, 56 of this Code.

more.

Finally. With this must be read Explanation IV. A decision is final, when it is such, that the Court making it cannot, except on review, alter it; or when it is liable to appeal, then till the appeal is instituted, the decision is final within the meaning of this section. An appealable judgment however can before the expiry of the term be pleaded as a pending proceeding. Decided must, be; taken with explanation III. and section 43. Relief

asked for in the plaint and not granted, Explanation III. points out, shall be deemed to have been refused. Section 43 will add that all relief, which arises out of a

plaintiff's claim must be inserted in his plaint, or he cannot sue for it again (But see further that section and notes upon the same). Court of competent jurisdiction, Competent is an important qualification, as questions of title are often indirectly decided by Courts of Small Causes and other Courts incompetent to determine them for any other purpose than the matter over which the Court has jurisdiction.

Between the same parties &c., This is extended by explanation V. to all persons interested in a private right claimed in common for the parties litigating and others, provided the litigation is bonâfide.

The last explanation is more properly a rule of evidence and with it the student must compare Ss. 40 & 43 of the Indian Evidence Act.

It has been held by the Privy Council in Kattama Natthiar v. Raja of Shivaganga that, where an estate is vested in a person absolutely for some purposes, though in some respect for a qualified interest, and, until the death of such person it cannot be ascertained who is entitled to succeed, such person, shall in all suits relating to the estate be deemed to represent the estates and all persons taking in succession to such person shall be deemed to take under him, Moores I. A. IX. 604. (9) JUS GENTIUM. This depends entirely upon the rules of natural law or upon mutual compacts, treaties,leagues, and agreements between the several communities. The law of nature, being the only one to which all communities are equally subject is the only one which can be referred to in the construction of these compacts.

Kent in his commentaries, says:The law of nations is the off