JUDGMENT

Spenser Wilkinson J:

This was a case stated by the President of the Rent Assessment Board under the provisions of s. 10 of the Control of Rent Ordinance, 1948. The point of law for decision was whether the defence of res judicata as provided for in O. 16 r. 3 of the Subordinate Courts Rules applied to the present application before the Board. The actual question as ut by the President of the Board in the case stated page reads as follows:

Does the defence of 'res judicata' properly apply in this case, and if so, does it constitute a bar to any further proceedings before the Board in respect of the same premises while owned by the same applicant and occupied by the same respondent.

The applicant had applied in Application No. 14 of 1953 on 24 March 1953 for leave to eject the respondent from No Road, 14, Scott Penang under the provisions of s. 13(1)(f) of the Control of Rent Ordinance, 1948 on the ground that she required the premises for her own use. A defence to this application was filed on 22 April 1953 and the case was fixed for hearing on 16 July 1953, but on 13 July 1953 the applicant filed a Notice of Discontinuance with the result that on 16 July 1953 the Board ordered that the application be struck out with costs.

A fresh application was made by the applicant in February, 1954 on substantially the same grounds as the first application, though in her grounds of application there was now an additional allegation that the applicant had from time to time offered to the respondent suitable alternative accommodation, which offers had not been accepted.

It was submitted by Mr. Abdoolcader on behalf of the respondent that under the provisions of O. 16 r. 3 of the Subordinate Courts Rules which were applied to proceedings before the Rent Assessment Board by the Rent Assessment Boards (Penang and Province Wellesley) Rules, 1948, r. 5 of which reads as follows

5. Subject to the provision of the Ordinance and to these Rules, the District Court Rules shall, with any necessary modifications, apply to applications to the Board and to summonses and notices issued by the Board.

Order 16 r. 3 of the Subordinate Court Rules reads as follows:

3. Withdrawal shall afford a defence by way of res judicata to subsequent proceedings unless -

(a) it occurred before the filing of the defence, or if no defence is filed, before the trial or hearing of the proceedings or

(b) the Court has granted leave to institute fresh proceedings.

It was argued by Mr. Abdoolcader on behalf of the respondent that the effect of this Rule is that where a Notice of Discontinuance is filed after the filing of the defence no subsequent proceedings can be brought unless the Court has granted leave to institute fresh proceedings and he relied on the case of Re May 28 Ch D 316.

In my opinion the use of the expression "by way of res judicata" in r 3 indicates that such a defence can only be raised in those cases where the well-known doctrine of res judicata applies. This doctrine is clearly explained in the judgment of Brett MR in the case of Re May 28 Ch D 316 in the following words : -

The doctrine of res judicata is not a technical doctrine applicable only to records. It is a very substantial doctrine, and it is one of the most fundamental doctrines of all Courts that there must be an end of litigation, and that the parties have no right of their own accord, after having tried a question between them and obtained a decision of a Court, to start that litigation over again on precisely the same questions. Therefore this was a judgment, and, if there was nothing else the existence of the first judgment, would be a bar to the new litigation upon precisely the same point between the parties.

I think the important part of this passage is the use of the expressions "precisely the same questions" and "precisely the same point". The doctrine of res judicata cannot be invoked if the issue between the parties in the second Proceedings is not substantially the same issue as that i