The main legal point established in the judgment is the requirement of evidence of gross negligence or such negligence as would vitiate the proceedings in a Court of Law to bar a claim based on res judicata.

Devadoss, J.

1. The only point argued in this second appeal is whether the plaintiffs claim is barred by res judicata by reason of the decision in S.A. No. 1240 of 1911, Exhibit V. Both the lower Courts have held that this decision is not binding on the plaintiff inasmuch as he was a minor at the time and his guardian, the Court of Wards, was guilty of negligence. Mr. Lakshmanna who appears for the respondent contends that it is not open to this Court to go behind their finding. But I am unable to accept that contention because the question whether there was negligence or such negligence as would vitiate the proceeding in a Court of Law is not only a question of fact but a question of mixed law and fact. "What is gross negligence is not merely a question of fact but one of mixed law and fact and therefore it is quite competent to the High Court in second appeal to go into the question to see whether there was gross negligence on the part of the minors guardian in the conduct of the previous suit. The question in volved is as regards the rate of rent for a Baput wet land. The High Court, decided in 1911 in S.A. No. 1240 of 1911, vide Exhibit V, that the rent payable was not at the rate claimed but at a lower rate viz., Rs. 2-11-4. In the course of the judgment the learned Judges observe that the question of res judicata was raised but there was no clue as to the identity of the lands and the question of res judicata was not put in issue in the lower Courts. There was another decision of the High Court which is evidenced by Exhibit B-2 in which it was held that to plaintiff was entitled to a higher rate at the rate of Rs. 5. The question is whether the Court of Wards was grossly negligent in not acting upon Exhibit B-2 when the suit of 1807 which ultimately came up in S.A. No. 1240 of 1911 was filed. In the present case no evidence has been adduced to show that the manager under the Court of Wards was either negligent or that he did not conduct the case of 1907 with due care and diligence. All that is brought forward is that Exhibit B-2 was not relied on for the purpose of raising the plea of res judicata. We do not know under what circumstances the manager and these who helped him in the conduct of the suit did not rely upon Exhibit B-2 and did not raise the question of res judicata. The question was sought to be raised before the High Court, but the High Court found that the identity of the parties was not established and therefore the previous judgment could not he res judicata between the parties, and they also say : "The first Court states that the judgements relating to the previous suit give no clue to the identity of the lands." And they go on to say : "The Judge does not hold that the lands are the same and we have not been referred to any evidence to show that the lands are identical." And they modified the decree of the District Court by giving the plaintiff rent at the lower rate. Mr. Lakshmarma for the respondent contends that the facts appearing in evidence are sufficient to make out such negligence as would be sufficient to vitiate the proceeding in a Court of Law, and he relies upon Ponnayyah v. Viranna A.I.R. 1922 Mad. 273 in support of his contention. In that judgment there is an observation upon which he very strongly relies : "It must be such negligence as leads to the loss of a right which might have been successfully asserted if the suit had been defended with due care." This sentence taken from its context no doubt would lend colour to the contention of the learned Vakil. But we have to see under what circumstances that observation came to be made. Where a guardian omits to put forward a plea which he should have put forward or fails to defend the suit which he ought to have defended, no doubt he would be guilty of negligence. But where a suit is prosecuted with due diligence the mere fact that a certain document which might have helped the party was not filed in evidence is not by itself sufficient