Sinha, J.@mdashThe facts in this case are briefly as follows : The respondent No. 1 in this appeal, namely, Shree Bhagawati Hosiery Mills Limited
(hereinafter referred to as the ""Mills"") had a cash credit account with the appellant, the Central Bank of India Limited (hereinafter referred to as the
Bank""). In the said account, the appellant Bank lent and advanced various sums of money from time to time to the Mills and granted overdraft
facilities, against inter alia hypothecation of goods. By a policy of Fire Insurance issued by the respondent No. 2 the General Assurance Society
Limited, the stock of the Mills'' goods stored in a godown at Bhagalpur were insured for a sum which was ultimately increased to Rs. 2,75,000/-.
It is stated that sometime in June, 1963, there was a big fire in the godown of the Mill at Bhagalpur as a result of which there was an explosion and
the goods were damaged. It is stated that at that time the Bank''s claim against the Mill on the overdraft account amounted to a sum of Rs.
1,47,971-13-3. It is next stated that the Mill, in spite of demand, did not pay the amount and so the Bank filed a suit, being money suit No. 116 of
1964 (The Central Bank of India v. The General Assurance Society Ltd.), in the First Court of the Subordinate Judge at Patna claiming inter alia a
decree for Rs. 2,75,000/- with interest and costs. This suit was compromised and the Insurance Company agreed to make an ex gratia payment to
the Bank for a sum of Rs. 1,47,931-13-3 which was accepted by the Bank and was credited in the overdraft account of the Mill. Even after
crediting the said amount in the overdraft account, there was a sum still due to the Bank from the Mill. As this was not paid, the Bank filed a suit
being money suit No. 248 of 1955 (The Central Bank of India Limited v. Shree Bhagwati Hosiery Mills Limited and others) before the
Subordinate Judge, Bhagalpore for recovery of the balance due on the overdraft account. The Mill contested the suit and filed a written statement.
Issues were settled in that suit sometime on the 31st day of July, 1956 and I shall have occasion to refer to it presently. This money suit was decree
in favour of the Bank on the December, 1961. Against that, an appeal has been taken before the Patna High Court and the appeal is still pending.
In the meanwhile, on the June, 1957, the suit in respect of which this appeal arises was filed in this Court by the Mills against the Bank and the
Insurance Company, being suit No. 1105 of 1957 (Shree Bhagwati Hosiery Mills Limited v. The Central Bank of India Limited and another).
Subsequently the Insurance Company has been dismissed from the suit. It appears that the suit came up for hearing in the court below, when the
plaintiff asked for an amendment of the plaint. The amendment was allowed on the 1st September, 1964. An appeal has been preferred against
that order but we are not concerned here with that appeal. On the 5th May, 1965 an application was made in the Court below by the Bank for
amendment of the written statement. In that application two reliefs were claimed. The first was that the written statement should be amended by
taking a plea of res judicata ; in other words it was contended that the Bhagalpur suit and the present suit covered the same ground and as the
Bhagalpur suit had been decreed the matter was res judicata between the parties. The second prayer was that, inasmuch as the decree in the
Bhagalpur suit was subject to appeal in the Patna High Court the hearing of the suit in this Court should be postponed till after the disposal of that
appeal, namely, appeal No. F.A. 75 of 1962 pending in the Patna High Court. In fact, the argument in this Court has been confined to these points
and we are not concerned with any other point. On the 17th May, 1955 the learned Judge in the Court below has dismissed this application but
has not given any judgment. Against this order of dismissal this appeal is directed. The first point taken by Mr. Ghose, appearing on behalf of the
Mills, is that no appeal lies against the order of the Court below. He has argued that an order refusing an amendment in a pleading does not decide
any right between the parties and therefore is not a judgment within the meaning of clause 15 of the Letters Patent and therefore no appeal lies. He
has however conceded that if the amendment relates to a question of the Court''s jurisdiction then in that event an appeal will lie, but he has further
argued that the question of jurisdiction must be one of ""inherent"" jurisdiction, meaning thereby either territorial or pecuniary jurisdiction or relating to
the subject-matter. He argues that the question of ""res judicata"" is not a matter relating to the jurisdiction of the Court. He has cited several cases,
to support his argument that ""res judicata"" does not involve a point of jurisdiction. For example, he has cited a Bench decision of this Court Rajani
Kumar Mitra v. Ajmaddin. Bhuiya, (1928) 48 C.L.J. 577, where it was held there that the bar of res judicata is one which does not affect the
jurisdiction of the Court but is a plea in bar. It is quite true that there are a number of authorities to this effect, some of which are conflicting. In
Sarkar''s Commentaries on the Civil Procedure Code, Fourth Edition, page 11, it is pointed out that the distinction between ""res judicate"" and
estoppel"" is that res judicata ousts the jurisdiction of the court while estoppel is not a rule of substantive law, in the sense that it does not declare
any immediate relief or claim. Several cases are cited there of this court and of the Bombay and Allahabad High Courts. In our opinion it is
unnecessary to go into all these cases because the point is covered by a recent decision of the Supreme Court Pandurang Dhoni Chougule Vs.
Maruti Hari Jadhav, . In that case, the Supreme Court was dealing with the question as to the meaning of the word ""jurisdiction"" in section 115 of
the Code of Civil Procedure. Gajendragadkar, C.J. said as follows :
It is well-settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the
proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous decision on
these pleas can be said to be concerned with questions of jurisdiction * *
Although this puts the matter beyond controvesy, I am tempted to refer to a Bench decision of this Court, presided over by Chakravarti, Shorab
Merwanji Modi and Another Vs. Mansata Film Distributors and Another, . That was a case u/s 10 of the Civil Procedure Code. Sections 9, 10
and 11 appear in part 1 of the Code of Civil Procedure, and are inter alia under the head ""Jurisdiction of the Courts and res judicata"". Section 9
says that the Courts shall have jurisdiction to try all suits of a civil nature, excepting suits of which their cognizance is either expressly or impliedly
barred. Section 10 rates to the stay of suits, providing inter alia that no Court shall proceed with the trial of any suit in which the matter in issue is
also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they were litigating,
etc., pending in the same or any other Court in India having jurisdiction in the matter. Section 11 deals with the principle of res judicata. This also
lays down a bar upon courts to 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 were litigating etc., in a Court competent to try such subsequent
suit. Both sections 10 and 11 are restrictions on the power of the Courts to try suits under circumstances mentioned therein. The learned Chief
Justice said as follows :--
In view of the somewhat in-determinate terms in which the test laid down in the two leading High Court decisions were framed, the task of
deciding whether a particular order is or is not a judgment is not easy. But it appears to me that at least where a question of the jurisdiction of the
Court to entertain or proceed with a suit or proceeding is involved and a decision on that question is given, such decision affects the merits of the
controversy between the parties. It is true that it does not touch the actual dispute regarding the respective rights and liabilities which is the subject-
matter of the suit or proceeding but whether those rights and liabilities can be adjudicated on by a particular court at all or adjudicated on at the
time, is also a matter of controversy between the parties. To be entitled to have one''s suit or proceeding decided by a particular court or to be
entitled to object that a suit or proceeding brought by one''s adversary cannot be or tried for the time being by the Court in which it has been
brought is, it seems to me, also a matter of right.
2. It was held that an appeal lay under clause 15 of the Letters Patent. On similar reasoning, it should be held that a plea of res judicata, which
determines whether the Court of the plaintiff''s choice should or should not determine a point in issue, gives to rights both to the plaintiff and the
defendant and where such rights are affected, it plainly comes within the scope of clause 15 of the Letters Patent. The defendant here wishes to
take the point of ""res judicata"". If at the trial this point is successful, it will stop the suit from proceeding any further, and as stated in the Supreme
Court judgment cited above, it relates to the jurisdiction of the Court to entertain the suit. If the defendant is not allowed to raise this point now it
will lose this right for ever. Under the circumstances, the matter does come within the ambit of clause 15 of the Letters Patent and is consequently
appealable.
3. We now come to the second relief, namely, that of postponing the hearing of the suit, and this also is said to be non-appealable. The mere order
for adjournment of a case is certainly not a judgment within the meaning of clause 15 of the Letters Patent. But in this case, I shall presently point
out that the relief is intimately connected with the plea of res judicata. Therefore, where such a plea is inter-mixed with the question of jurisdiction
so that they cannot be separated, it will come within the scope of clause 15 of the Letters Patent. This has been pointed out in a case cited by Mr.
Ghose himself Daulatram Agarwalla Vs. Champalal Jugraj, . Bose, C.J., held that where the question of procedure and the question of jurisdiction
are so mixed up that one cannot be disassociated from the other, an order dealing with such question of procedure and jurisdiction is an appealable
order, being a judgment within the meaning of clause 15 of the Letters Patent.
4. The question of appealability being out of the way, we now come to the merits of the appeal. All that the defendant has prayed for was to be
given an opportunity of raising the plea of res judicata. The way that it has been argued before us by Mr. Deb is as follows : In money suit No. 248
of 1955 before the learned Subordinate Judge at Bhagalpur, the Bank claimed payment of the balance of the monies said to be due to them in the
overdraft account. In answer to this, the Mill filed a written statement, a copy of which is se out in the paper book at pages 90 to 94. In paragraph
12, it has been stated that the compromise entered into by the Bank with the Insurance company is collusive and unauthorised. In paragraph 13 it
was alleged that by withdrawing the suit and accepting the sum of Rs. 1,47,931-13-3 only from the Insurance company, there was collusion, fraud
and breach of faith, together with gross negligence on the part of the Bank, and so it could not be permitted to claim any monies from the Mills.
Clear issues were raised on such disputes. The issues are set out at page 95 of the paper book. There is an issue as to whether the claim was
barred by reasons of acceptance of the said sum and also whether there was collusion, fraud and breach of faith or gross negligence on the part of
the Bank. Let us now see the nature of the action in this Court. The plaint in the suit is set out at pages 41 to 48 of the paper book. There also the
substantial claim is that there was fraud, collusion and conspiracy on the part of the Bank in allowing the Patna suit to be compromised and in doing
so without the knowledge and consent of the Mill. There are of course other minor allegations but these seem to be the principal allegations made
in the suit. It is not necessary for us to find here conclusively as to whether the suits are identical. It is sufficient at this stage to hold that the principal
issues are the same or appear to be the same. That being so, the question is whether it comes within the ambit or scope of a Privy Council decision
namely, AIR 1931 263 (Privy Council) . That decision deals with a point that was also canvassed before us. It was argued that one of the reasons
which swayed with the learned Judge in the court below was that the granting of this application for amendment would be futile inasmuch as the
decree of the Bhagalpur Court is now under appeal and therefore the provisions of section 11 of the CPC do not apply. Strictly speaking, where a
decree is under appeal it is no longer an effective decree so as to bring the matter within the scope of section 11. The Privy Council decision cited
above however, holds that there is no merit in the argument that the matter is not res judicata, merely because an appeal has been preferred. Under
such circumstances the proper course for the courts would be to stay the suit until the appeal is disposed of. In our opinion, this authority is
applicable to the facts of the instant case. It is not to be expected that to take advantage of the applicability of section 11, the parties would not
prefer an appeal. But if it has been so preferred, although technically the principle of section 11 cannot be applied, the parties affected should not
be allowed to get rid of the beneficial provisions laid down by section 11, simply because an appeal has been preferred. In such a case, the proper
relief would be to postpone the hearing of the suit until the appeal is heard. To this course, two objections were raised. One is that at the moment
when the amendment application was refused, the appeal had not been heard and therefore there was no question of res judicata. To this point the
simple answer is that it may yet be heard and disposed of before the suit in this Court comes to be determined. It is our duty to see that this in fact
happens. Next, it is said that there has been delay. In our opinion, mere dtlay cannot defeat a plea of res judicata. What had happened in this case
is that the suit having come up for hearing, it was the plaintiff who asked for an amendment first. The result was that the hearing of the suit has now
been indefinitely postponed. Therefore, there is no merit in the plea of delay. That being so, the orders will be that the appeal is allowed and the
order of the Corut below is set aside. There will be an order in terms of prayer (a) of the petition, such amendment being effected within three
weeks from the date when this order is drawn up. Order is passed in terms of prayer (c) of the aforesaid petition. There will be a further order that
the hearing of the suit be adjourned till after the disposal of appeal No. F.A. 75 of 1962 pending in the High Court of Patna. If the said appeal is
not disposed of within a period of one year from the date of making this order, the parties will be at liberty to apply for vacation of this part of the
order. Each party will pay its own costs of this appeal and of the application in the Court below. The plaintiff in the suit will be given liberty to file
additional written statement confined to the matters brought in by the amendment within one month of the amended written statement being served
on them and the defendant No. 1 must pay the costs of that additional written statement.
Masud, J.
I agree.