The doctrine of merger applies when an appellate court makes a final judgment, and the judgment of the lower court merges into the appellate court's judgment. A plea of res judicata cannot be raised if the judgment of the appellate court does not contain a finding on the issue in question.

( 1 ) THE contentions raised for sustaining this appeal under S. 100 of the C P. C are two-fold.

( 2 ) IN the first instance it is urged that the order dated the 9th Septemter, 1966 psssed by the Additional Rent Controller under S. 45 of Act 59 of 1958 was operative as res-judicata and it was not open to the civil courts to determine that the appellant was not a tenant of respondent No. 1.

( 3 ) THE second contention is that the learned Additional, District Judge whose decision dated the 18th May, 1967 is sought to be impugned through this appeal had not considered valuable documentary evidence comprised in Exhibits D/2, D/3, D/8 and D/9 and had not dealt with the evidence produced by the plaintiff (respondent No. 1 to this appeal ). It is urged that for that reason also the impugned decision is contrary to law.

( 4 ) THE learned counsel for the appellant based himself on the observations made by the Supreme Court in Shrimatt Rajlakshmidasi and others v. Banamali Sen at page 40 and in Duryao and others v. State of U. P. Paras 9, 10 and 11. On being reminded of Gulab Chand Chhotalal Parikh v. State of Gujatat, the learned counsel placed reliance on the observations contained in para 33 and in the rest of the judgment. The submission is that even if it be taken that the statutory provisions of S. II of the C. P. C. remain restricted in their application to a subsequent civil suit the doctrine of res judicata as such as a matter of public policy will apply wherever a conclusive decision between the parties is available debarring a subsequent retrial of the same matter.

( 5 ) IN Shrimati Raj Lakshmi Dasi and others case it was observed that a plea of res judicataon general principles could be successfully taken in respect of judgments of courts of exclusive jurisdictionlike Revenue Courts, Land Acquisition Courts, Administration Courts etc. The Supreme Court in AIR 1961 SC 1457 concerned itself with the rule of res judicata in its applicability on the basis of public policy in case of decisions which the courts may make in exercise of their jurisdiction under Articles 32 and 226 of the Constitution of India. Inparagraph 10 of its judgment, the court approved the observations made by Sir William B. Hale in the leading case: Duthces of Kingston, 2 Smith Lead cases 13th Edition at pages 644 and 645 where it was said.

"from the variety of cases relativeto judgments being given in evidence in civil suits, these two deductions seem to follow as generally true; First, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court; Secondly, that the judgment of a court of exclusive jurisdiction directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court fora different purpose. "the application of the doctrine of res judicata is often invoked on the principle that there must be an end to litigation. There are, however several limitations under which the doctrine works and the prerequisite is that the court or tribunal which may have made the former decision must be of competent jurisdiction. The decisions sought to be invoked as res judicata must be the final decisions prevailing between the parties on the question to which the bar is sought to be applied In Gulabchand Chhotalal Parikh s case, Reghubar Dayal, J, dealt in detail with the rule of res judicata while delivering the majority judgment and in paragraph 50 reproduced the observations contained in 1916 P. C 78. The Supreme Court noticed that even in the texts of ancient Hindu Law it had been incorporated that if a person though defeated at law may sue again he may be answered that he was defeated formerly. That was called the plea of former judgment.

( 6 ) THE public policy emphasised is for the purpose of achieving finality