The main legal point established in the judgment is the application of res judicata and the conditions for deemed tenancy under S.6A of the Kerala Land Reforms Act.

Defendant appeals. Suit is one for eviction. Respondent is the owner of the premises let out to one Ali. Appellant was the sub-lessee under Ali. In execution of a money decree in O.S.No. 685 of 1965, the rights of Ali and the appellant were sold in Court auction and purchased by the respondent on 8-3-1967, evidenced by Ext.A3. Sale was confirmed and delivery, as seen from Ext. A4, was taken on 20-3-1967. Appellant then executed Ext. Al lease deed on 17-121967 and took the property on lease from the respondent.

2. In the suit for eviction, appellant denied the Court sale and delivery and contended that Ext. A1 was executed in continuation of the earlier lease. He claimed fixity of tenure and relied on Exts. B1 and B5 order and purchase certificate issued by the Land Tribunal, to the effect that he purchased the rights of the land owner and intermediary. Respondent successfully established not only that he was not a party to Exts. B1 and B5 and no notice was issued to him, but also that the appellant is not the applicant. Identity of property is also not established by the appellant. The trial Court and the appellate Court rejected Exts. B1 and B5 and the contentions of the appellant on the grounds that,

(a) the person who obtained Exts. B1 and B5 is not the appellant;

(b) there is nothing to show that respondent is a party to Exts. B1 and B5 or that notice was issued to him; and

(c) the appellant is holding under Ext. B1 which is hit by S.74 of the Kerala Land Reforms Act.

The names and other details of the applicant or respondent in Ext. B1 or B5 do not tally with the appellant or respondent. There is no other connecting evidence also. Therefore; there is no question of Exts.B1 and B5 operating as res judicata.

3. Even though res judicata was considered on merits and found against by both the Courts, the appellate Court took a further stand that plea of res judicata was not raised at all. Even though there is conflict of opinion whether res judicata affects the jurisdiction of the Court itself or whether it is only a rule of procedure, the bar is applicable only when it is pleaded and established. Jurisdiction of the Court to try the suit or issue is always there and res judicata only bars investigation and decision on matters finally decided inter partes earlier. If the defendants omit to plead and prove res judicata and the Court investigates and decides matters already concluded between the parties without knowing such a decision, it is not void for want of jurisdiction. Plea of res judicata is one which might and ought to have been raised as a defence and stablished in order to operate as a bar in the exercise of jurisdiction to try and dispose of the matter subsequently. Otherwise the later decision will prevail and the plea of res judicata itself will be barred by constructive res judicata and the later decision overlooking the bar of res judicata alone will prevail. The plea is one which could be waived.

4. In considering whether the defendant pleaded res judicata Courts should not stand on hypertechnicalities. The approach should be with the view that dispensation of justice and not its. denial on technicalities is the purpose. Courts should be more concerned with the substance of the plea than its form. What S.11 imposes is a bar on the Court not to try any suit or issue in which the matter directly and substantially in issue has already been so in issue and decided in a previous suit inter partes on certain conditions. When from the pleadings or the documents produced the Court has reason to think that the suit or any issue is barred by res judicata, the absence of a specific plea to that effect should not stand in the way. In this case, the appellant produced Exts. B1 and B5 and pleaded that he is a tenant who purchased the rights of the land, lord and intermediary and he cannot be evicted. It is true that he did not specifically say that the suit is barred by res judicata. Still the plea and the documents were