JUDGMENT

Bhide, J. - This second appeal arises out of a suit for a declaration that an alienation of certain land effected by one Indar in favour of Nila, defendant 1, was without necessity and consideration and should not affect the plaintiff's reversionary rights. The suit was dismissed by the trial Court, but on appeal the learned District Judge has remanded it for re-trial. From this decision the present appeal has been preferred. It appears that a similar suit for a declaration had been instituted by Kartar Singh, eldest brother of the present plaintiff, but was dismissed on 2nd June 1926. The dismissal was under Order 17, Rule 3, Civil P. C, Kartar Singh having failed to produce evidence on the date fixed. Further opportunity to produce evidence was refused and the case was dismissed. No appeal was preferred by Kartar Singh and the decision in the previous suit thus became final.

2. The learned Counsel for the appellant contends that the previous suit being of a representative character the decision therein was binding on the plaintiff and that though the case was decided under Order 17, Rule 3, Civil P.C., the decision is deemed to be on merits for the purposes of Section 11, Civil P.C. In support of his contentions the learned Counsel for the appellant relied on Govindoss Krishnadoss v. Rajah of Karvetnagar 1929 Mad 404. The view taken by the learned District Judge on the above point was that the previous decision was not on merits as Kartar Singh had failed to produce the necessary evidence and the plaintiff who is a minor was not bound by the previous decision. He pointed out that even if the plaintiff had instituted the previous suit through Kartar Singh as next friend he could have challenged the decision on the ground of gross negligence on the part of the next friend. The fact that a suit of the present type is of a representative character and any decision arrived at therein is binding on all the reversioners was not disputed by the learned Counsel for the respondents, but he distinguished the present case on the ground that the plaintiff was a minor and he also adopted the argument of the learned District Judge that, if Kartar Singh had instituted the previous suit on behalf of the plaintiff who is a minor, the plaintiff could have maintained the present suit on the ground that Kartar Singh was guilty of negligence in conducting the previous suit.

3. The decision of the point at issue depends on the question whether Explanation 6 to Section 11, Civil P. C, applies to the circumstances of this case. According to that Explanation, when persons litigate bona fide in respect of a public or private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose of the section, be deemed to claim under the persons so litigating. Now, there can be no doubt that Kartar Singh was litigating in the previous suit in respect of a right common to all the reversioners. There is no suggestion that the previous suit was collusive, or that Kartar Singh was guilty of fraud. All that has been urged is that (i) Kartar Singh was guilty of negligence in not depositing the process fees in Court in time and (ii) that as a result there was no decision of the case on merits. As regards the first point, the facts were that Kartar Singh had made over diet money to his pleader's clerk but the latter decamped with it. The pleader on coming to know of this went to Court ten days before the. hearing and deposited the process fees and diet money. But the Court refused to adjourn the case for want of service. The learned District Judge has himself remarked that the Court was not justified in throwing out the case in such circumstances. This finding means that the learned District Judge was of the opinion that Kartar Singh had done all that could be reasonably expected and was not guilty of any negligence. And yet the learned District Judge went on to remark that, if Kartar Singh had instituted the pre