JUDGMENT

Lancelot Sanderson, C.J. - This is an appeal from the judgment of the learned Subordinate Judge of Burdwan made on the 12th of September 1913, in which he dismissed the suit of the plaintiff on the ground that the matter was res judicata. It appears that the plaintiff brought a suit in the year 1905 in respect of the same property which was the subject-matter of this suit, asking for the same relief which he asked for in the present suit. That suit was contested, evidence being called on both sides, and the Court of first instance which heard that evidence dismissed the plaintiff's suit. Then on appeal to the lower Appellate Court, and at some stage of that hearing, he applied u/s 373 of the old CPC for leave to withdraw from the suit alleging first of all a formal defect, and secondly, his inability to produce the necessary evidence in time. It was admitted by the learned Vakil who argued this case for the appellant that, as far as he knew, there was no formal defect proved before the Appellate Court, and that the only ground which could be relied upon by the petitioner in that case was the second one, namely, that he had not been able to produce the necessary evidence in