Fazl Ali, C.J.These second appeals have been referred to a Full Bench for the decision of the following question:

Whether where on the application of the tenant the rent of an occupancy holding has been reduced u/s 112A(1), Clause (d), the Rent Seduction Officer has jurisdiction again to reduce the rent u/s 112A(1), Clause (d) within the period specified in section 113 save on the grounds indicated therein.

2. A brief statement of the facts of the case will show that the question which has been referred to us does not arise in these appeals. The question is said to arise in respect of two khatas, namely, khata No. 415/1 and khata No. 416. It appears that on 8th November 1939 on the application of the tenants u/s 112A the Rent Reduction Officer reduced the rent of khata No. 415/1 to Rupees 14 and that of khata No. 416 to Rs. 17-11 0. On 20th November 1939, that is to say, only 12 days after this order, the tenants concerned applied again for the reduction of rent u/s 112A Clause (d) and by his order dated 29th November 1939 the Rent Reduction Officer reduced the rent of khata No. 415/1 to Rupees 7-10-0 and that of khata No. 416 to Rs. 9-11-0. In spite of this last order the plaintiff landlord brought two suits for recovery of rent for the years 1344 to 1347 at the rates allowed by the first order of the Rent Reduction Officer, that is to say, at the rate of Rs. 14 for khata No. 415/1 and Rs. 17 for khata No. 416. The tenants in defending the suits relied upon the order dated 29th November 1939 and the suits were decreed only at the rates allowed by that order, that is to say, at the rate of Rs. 7-10-0 for khata No. 415/1 and at the rate of Rs. 9-11-0 for khata No. 416. The plaintiff landlord thereupon brought the present suits for a declaration that the reduction of rent allowed by the second order of the Rent Reduction Officer, that is to say, the order passed by him on 29th November 1939 was without jurisdiction and for recovery as damages of the difference between the amount of rent which was allowed by the Court in the rent suit on the basis of the second order of the Rent Reduction Officer and the amount which according to the plaintiff ought to have been allowed on the basis of his first order. In other words, the plaintiffs case was that the first reduction was binding upon him, but the second reduction was liable to be ignored as the Rent Reduction Officer had no jurisdiction to reduce the rent of an occupancy holding for a second time in the course of 15 years.

3. These suits were contested by the defendants who are the tenants of the two khatas and it was alleged by them in their defence that the first order of the Rent Reduction Officer dated 8th November 1939 was made ex parte on the basis of the papers produced by the plaintiff and that when the defendants came to know of the ex parte order they filed an application for re-hearing upon which the Rent Reduction Officer again heard the cases in the presence of both the parties and after considering the evidence produced by them passed the second order dated 29th November 1939, this order being one which the Rent Reduction Officer was fully competent to pass.

4. Both the Courts below have held that the second reduction was not ultra vires and the lower appellate Court seems to have accepted the evidence adduced on behalf of the defendants which was to the effect that the second order was passed upon their application for re-hearing the two cases; As the evidence which wad given by the defendants in the trial Court on the point has not been re-produced in the judgment, it will be useful to state what the defendant who gave evidence actually deposed to in the trial Court. What he said was this:

I had applied for reduction of rent. Of the first date of hearing I had no knowledge and the case was decided ex parte. I later asked the Deputy Collector about my case and he said that it had been decided ex parte. I showed him my receipt. Thereupon he asked me to file a re-hearing petition. I filed a petition and my case was re-heard in the presence of the plaintiffs servants. The plaintiff did not prefer any appeal.

5. According to my reading of the judgment of the lower appellate Court this evidence was accepted in its entirety and the question is what is the effect of the finding of the lower appellate Court on this point. A reference to Rule 114 which is one of the rules framed under the Bihar Tenancy Act in regard to proceedings relating to the settlement of rent u/s 112A shows that Rules 82, 83 and certain other rules which were framed by the Provincial Government to govern the proceedings u/s 104 were adopted for the purpose of proceedings u/s 112A also. Rule 82 is to the following effect:

When the landlord or tenant applies for the settlement of a fair rent he shall be considered as plaintiff and the opposite party as defendant. The proceedings shall be dealt with as suit, and subject to the directions contained in Rules 84 to 87 of this Chapter, the Revenue Officers shall adopt, as far as it is applicable, the procedure laid down in the CPC for the trial of suits.

6. It is unnecessary to refer to Rules 84 to 87 because they do not affect the point which arises in these appeals. In substance what Rule 82, when applied to proceedings u/s 112A, provides is that these proceedings will be in the nature of suits and they will be governed as far as possible by the Code of Civil Procedure. According to this rule the tenants who are defendants in the present suits were plaintiffs and the landlord who is the appellant before us was the defendant in the proceedings u/s 112A. If the evidence given by the defendants is correct (and it must be accepted to be correct because it has been accepted by the lower appellate court) what happened in the rent reduction proceedings was that the defendants had made an application for reduction of rent, but it was taken up on a date of which they had no notice and it was disposed of ex parte. Thereupon a re-hearing application was filed and the matter was re-heard and a final order was passed on 29th November 1939. The whole question therefore resolves itself into whether the Rent Reduction Officer bad jurisdiction to re-hear the application for the reduction of rent in the circumstances stated in the evidence of the defendant. In my opinion the answer to this question must be in the affirmative if the CPC is held to apply to the proceedings u/s 112A. In other words, the Rent Reduction Officer was fully competent to re-hear the matter and to decide it afresh. That is what he has done and therefore his order cannot be challenged by the appellant landlord. If the order made by the Rent Reduction Officer was substantially an order upon a re-hearing petition, then the question which has been referred to us does not arise and need not be answered. Any answer which we may give to the question will be academic and will be treated only as obiter dicta. It was contended by Mr. Sarjoo Prasad, who argued these appeals very fully and in the course of his argument urged all that could be urged on behalf of his client, that the second application of the defendants cannot be treated as an application for re-hearing because the order which was passed upon it does not purport to be an order passed upon an application for re-hearing a case; but in my opinion this argument can be disposed of on the short ground that the appellant upon whom lay the onus of showing that the order of the Rent Reduction Officer was ultra vires ought to have produced the application filed by the tenants, but they have not done so. We have to look to the substance of the proceedings which resulted in the order which is attacked in these appeals and not to the mere form. In my judgment upon the finding of the lower appellate Court there can be no doubt that the order which is attacked as being without jurisdiction was passed upon an application made by the tenants for re-hearing the matter. But assuming for the sake of argument that the second application of the tenants, that is to say, the application made by them on 20th November 1939 was a fresh application and was not an application for re-hearing, the appellant will have to face a further difficulty, that is to say, there will be a bar of res judicata involved in the decision of the question which he asks this Court to decide. If the second application was a fresh application, then the proceedings which were started on the basis of that application were suits and the appellant must be regarded as defendant in those suits. If the suits were brought in regard to matters which had already been the subject matter of a previous suit, it was open to the appellant to show as defendant that those matters could not be re-agitated as they had already been decided in the previous suits.

7. The appellant, however, did not raise any such defence and therefore Explns. 4 and 5 to Section 11, Civil P.C., will be an impediment in his way. Explanations 4 and 5 run as follows:

Explanation 4: Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation 5: 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.

8. Section 11, however, lays down that 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 and has been heard and finally decided by such Court. The appellant did not contend in the second proceedings before the Rent Reduction Officer that the rent could not be reduced further because it had already been reduced by a previous order. If this point had been raised and decided against him, it would have been open to him to appeal against the decision of the Rent Reduction Officer u/s 112A. He did not, however, raise the point before the Rent Reduction Officer and now he wants to raise it in a separate suit. In my opinion the principle of res judicata clearly applies [to such a situation and the appellant cannot be allowed to raise the point in these suits. II have considered this alternative situation merely upon the hypothesis that the second application for reduction was not an application for re-hearing; but as I have already said, the correct view upon the findings of the lower appellate Court is that those applications were applications for re-hearing.

9. As these appeals fail on the grounds stated in my judgment the question which has been referred to us does not arise and without answering this question I would dismiss these appeals with costs. There will be one set of hearing fee.

Shearer, J.

10. I agree.

Sinha, J.

11. I agree.