Sharma J:

The plaintiff and the defendant entered into an agreement on 17 January 1962 whereby the plaintiff agreed to erect eight plank houses for the defendant on the latter's land. The defendant agreed to pay the plaintiff $6,150 for the construction of these houses. Payment of the contract price was to be made by the defendant in accordance with cl 8 of the agreement which is reproduced below:

8. Payment shall be made as follows:

(a) The first payment is paid upon signing of this agreement and the amount is $1,000.

(b)When the beams have been erected an advance of $500 to be paid to the second party.

(c)When roofs are covered then another advance of $650 to be paid to the second party.

(d)After one month of completion another advance of $500 to be paid to the second party.

(e)The balance of $3,500 shall be paid by monthly instalments of $250 by 14 months instalments. The monthly instalments shall be paid from first to 15 day of each month. If the instalment is not paid accordingly then the first party shall be responsible for the compensation incurred by the second party.

The plaintiff had earlier on 2 August 1962 commenced an action in the Sessions Court, Malacca, being Civil Action No. 49 of 1962 in which he admitted having received a sum of $2,085 from the defendant. The claim of the plaintiff in that action was for $1,065 and not $4,065 (i.e. $6,150 - $2,085) as he could then claim only for the instalments which were due up to the end of July 1962. The defendant had in that action filed a counterclaim against the plaintiff. The following issues were by consent of the parties framed by the learned president:

(1)Whether the defendant had paid to the plaintiff the sum of $2,565 and not $2,085 as was alleged by the plaintiff.

(2)Whether the plaintiff had not completed the work on or before the 18 March 1962 in accordance with the agreement dated 17 January 1962.

(3)Whether the plaintiff had not completed the said work in accordance with the specifications.

After hearing the evidence the learned president seemed to have been satisfied that the defendant had paid to the plaintiff a sum of $2,565 and he consequently on 7 September 1965 gave judgment for the plaintiff in the sum of $585 and costs and nothing was said or mentioned at all about the defendant's counterclaim or about the other two issues which the parties had agreed to be tried. There was no appeal against that order of the learned president.

Clause 8(e) of the agreement (Exh. A1) stipulated for payments of fourteen monthly instalments of $250 each. The plaintiff had included in his claim in the sessions Court monies which were due to him up to 2 August 1962. The claim included only two of the fourteen monthly instalments which the defendant had agreed to pay. The present claim of the plaintiff is in respect of the balance of the twelve monthly instalments totalling $3,000. The defendant has now raised the plea of res judicata and at the trial of this suit the following preliminary issue was framed: "Is the claim of the plaintiff in the present suit barred by res judicata?" Mr. Shunmugam, Counsel for the defendant, very rightly at the end of the arguments submitted that if the defendant's plea of res judicata failed, there should be judgment for the plaintiff as prayed as there was no other plea sustainable on behalf of the defendant.

The law of res judicata was contained in s. 6 of the former FMS Civil Procedure Code. It finds no place in our present Rules of the Supreme Court. I do not know why.

In order to render a prior decision conclusive in a subsequent suit it must appear from the record of the former suit that the particular matter sought to be concluded was necessarily determined. "Res judicata" said Lord Romilly in Jenkins v. Robertson [1867] LR 1 HL 117.

by its very words means a matter upon which the Court has exercised its judicial mind and has come to the conclusion that one side is right and has pronounced a decision accordin