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Present: Lascelles C.J. and Middleton J.ALLAGASAMY v. THE KALUTARA CO., LIMITED, et al.
51—D. C. Kalutara, 4,391.
Res judicata—Civil Procedure Code, ss. 34, 35, 207, and 406—Claimby kangany against employer for “pence money ”—Withdrawalof action—Subsequent action for wrongful transfer of coolies fromplaintiff’s gang to another.
. Plaintiff, a kangany, sued the second defendant (the superin-tendent of an estate) in the Court of Requests for “ pence money ”due to him in respect of a gang of coolies. The defendant pleadedthat the coolies had been transferred from plaintiff’s gang to anothergang, and that therefore no “pence money” was due to the plaintiff.
Ultimately a portion of his claim was admitted and paid, and it wasrecorded that the plaintiff was allowed to withdraw his action. Theplaintiff then brought the present action against the first defendantcompany and the second defendant to recover a sum of Rs. 10,000as damages for the wrongful transfer of the coolies.
Held, on a plea of res judicata, that the action was maintainable.
A great criterion of the identity of causes of action is that thesame evidence will maintain both actions.
Middleton J.—There is nothing to show that at the time ofthe institution of the Court of Requests case the plaintiff was awarethat he could have claimed any other relief than that sought forin that case, and I think, therefore, that under section 207 of theCivil Procedure Code he is not now estopped from claiming therelief demanded in the present action.. .
A right which a litigant possesses, without knowing or ever havingknown that he possesses it, can hardly be regarded as a portion ofhis claim.
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N this case the plaintiff sued the two defendants to recover asum of Rs. 11,201.33 as damages on three causes of action.
The first cause of action was that, by reason of the defendantshaving wrongfully and unlawfully transferred forty coolies belongingto his gang as a kangany to another gang, the plaintiff had suffereddamage to the extent of Rs. 10,000. Hie second cause of actionwas that owing to this conduct of the defendants the plaintiff isprevented from recovering the debts due from the coolies, and thedefendants had thereby become liable to pay plaintiff the saidRs. 127.53. The third cause of action was to recover a sum ofRs. 1,074, which the plaintiff had paid defendants under protest.
As regards the first two causes of action, the defendants raised aplea of res judicata by reason of a judgment in a previous case(No. 5,767 of the Court of Requests, Kalutara) between theplaintiff and the second defendant. The learned District Judge(T. B. Russell, Esq.) upheld the plea of res judicata by the followingorder :—
The first issue must, I think, be decided in favour of the defendantsas far as the plaintiff’s first two causes of action are concerned. Thereis no doubt, though it was not stated in so many words in the plaint in5,767, that the real cause of action in that case, as in this, was thealleged wrongful transfer of the coolies. This is shown by paragraph 5of the answer, which gives the defendants’ reason for the transfer,, andthe consequent failure to pay the “ pence money ” ; and this plea'wasaccepted by the plaintiff’s proctor himself, and made the basis of oneof the issues suggested by him. Nothing seems to me clearer, and it'was open to the plaintiff on this one cause of action to have combinedthe claim for “ pence money ” with the claim on the first two causes ofaction in this case. For all three claims arise out of the alleged wrongfultransfer. Plaintiff’s proctor urged that there was nothing to show thatthe claim on the second cause of action so arose, but he has not offeredany other explanation, and the inference I draw from the words of theplaint is irresistible.
It seems to me beside the question to say that the Court of Requestshad no jurisdiction to try the present case. There was nothing toprevent plaintiff taking his case to the higher court, and he cannot takeadvantage of his default now to over-ride the decision in the Court ofRequests case.
It is also immaterial, in view of the provisions of the Procedure Code(sections 34 and 207), that the issues in 5,767 were not decided on theirmerits. It is sufficient that they were decided by the withdrawal ofthe case, and that no leave to re-institute was obtained from the Court.
As regards, the statement that the two cases are not between the sameparties, it is sufficient to point out that’the second defendant was suedin the- previous case in his capacity as superintendent of the firstdefendant’s estate, and it is not even pretended that there is anythingmore than a merely technical difference in the defendants in the twocases. I accordingly decide the first issue as far as it affects theplaintiff’s first and second causes of action in the defendant’s favour.
Allagasamyv. The Kalu-tara Co., Ltd.
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Allagasamy«. The Kalti-tara Co., Ltd.
There roewairis few third range of acr.ion. The parries are, however,agreed that, as this may involve the hearing of evidence, and as theplaintiff proposes to appeal against my decision, the consideration ofthis issue may be left over till the appeal has been decided. I agreealso, if my decision is reversed, it will save time if all the issues, of footare heard at once instead of piecemeal, as would be the case if I proceededon with the third cause of action now.
The plaintiff appealed.
A. St. V. Jayewarrlene, for the plaintiff, appellant, contendedthat the District Judge was wrong in upholding the defendants’ pleaof res judicata. Before such a plea could prevail, it must, be provedthat the causes of action and the parties in ■ lie two actions areidentical. The present claim could not have been included in theformer action, as the causes of action arc entirely different. In theformer case the cause of action was a breach of contract; in thepresent case the cause of action is a.tort. Section 34 only requiresthat every action shall include .the whole of the claim arising fromone and the name cause of action, and not that every action shallinclude every claim or every cause of action which the plaintiff mayhave against the defendant (Piltaput Raja v. Swiya Rau,x Amanatv. Imdad,2 Hanumun v. H.z), even where several causes of actionarise from the same transaction (Brunsden v. Humphrey*). If thedefendants’ answer in the former action raised the same issue as isnow raised in this case, the plaintiff could not have claimed inreconvention, as his claim is beyond the jurisdiction of the Ccurt ofRequests. (Ibrahim Baay v. Abdul Rahim?)
The parties to the two actions are different. Sections 34 and 207,therefore, have no application. The withdrawal of the former actionwithout permission to institute a fresh action, does not bar thepresent action. That section only precludes a subsequent actionbeing instituted in respect of the “ same matter”. The subject-matter of the present action is different from the subject-matter ofthe previous action. (Vide Malta's CVviV Procedure Code (Indian),p. 375, 2nd ed.)
There was no adjudication on the rights of the parties, as theaction was withdrawn on the case being amicably settled as admittedby the defendants.
Elliott (Wadsworth with him), for defendants, respondents,contended that the plea had been rightly upheld. The issue raisedin the present action was raised by the plaintiff’s proctor in theformer action when the issues were settled. It would have beendecided in that action had the plaintiff not withdrawn the same. Bywithdrawing the action without permission to institute a fresh one,the plaintiff is now precluded from maintaining the present action
11. L. R. S Mad. 520.*1.1. R. 19 Cal. 12:;.
* 1. L. R. 15 Cal. 500.* L. S. H O. B D. 141.
5 (1009) 12 1H. L. R. 177.
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under section 406 cf the Civil Procedure Code. The determination Mauof an issue in a Court of Requests case is res judicata in regard to the AilagaOamysame issue if subsequently raised in a District Court case (Dingiri *'• The Kdtu-Menika v. Punchi Mahatmaya*).Co'’ fjUi'
The causes of action are practically the same in both actions,the same issues arise iu both. As regards the parties, the seconddefendant, although *ued alone in the first action, was sued us thesuperintendent and agent of th* first defendant company. Themere addition of the first defendant company—the principals—should make no difference.
Jay&vtvdene. in reply.—There is no definition of cause of actionin the Indian Code, while our Code defines it (section 5). TheIndian decisions on that point do not apply.
There is no proof that ti the date of the institution of the firstaction plaintifT was aware that his coolies had been wrongfullytransferred to another gang.
Cur. adv. vult.
May 16, 1911. Lascelles C.J.—
In this case the plaintiff sued the defendants, the second defendantbeing the superintendent of the defendant company, claiming fur afirst cause of action Rs. 10,000 as damages, on the ground that thesecond defendant, acting for and on behalf of the defendant companyhad wrongfully and unlawfully transferred forty labourers fromthe plaintiff’s gang to another gang ; and claiming further, as asecond cause of action, Rs. 127.53, representing the differencebetween the debts owing to the plaintiff by these forty labourersand the plaintiff’s indebtedness to the defendants. No questionarises on the appeal with regard to the third cause of action.
At the hearing the defendants contended, and the'leamed DistrictJudge has held, that in view of sections 34 and 207 of the CivilProcedure Code the plaintiff is barred from bringing the presentaction by reason of the action brought by him against the seconddefendant alone in C. K. Kaiutara, 5,767. In this latter action theplaintiff averred that during the months of March and April hisgang of coolies worked on the defendant’s estate, and that theirwages were duly paid, but the “ pence money ” due to the plaintiffhad not been paid. The plaintiff claimed the “ pence money,”amounting to Rs. 110.
The defence was that on March 14 forty coolies were transferredfrom the plaintiff’s gang to another gang, and the plaintiffs proctorsuggested issues raising the question whether the plaintiff wasentitled to “ pence money ” for these forty coolies after March 14,and whether the coolies were transferred with the consent of theplaintiff. Ultimately a portion of the claim was admitted and paid,and the plaintiff was allowed to withdraw the claim.
1 C1910) 13 N. L. B. 39.
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May 16, VJllLascelleb
AUagaaamyv. The Kalu-tara Co., Ltd.
The principal question is whether the cause of action within themeanings of sections 34 and 35 of the Civil Procedure Code is oneand the same in both actions. It may be true that both actionsarose out of the same transaction, namely, the withdrawal of certaincoolies from the plaintiff’s control, but it does not follow that the44 causes of action ” as defined in section 5 of the Code are identical.
In the Court of Requests the action was founded on an impliedcontract between the parties with regard to payment of 14 pencemoney ” and upon the plaintiff’s refusal to pay the money so due.The “ cause of action,” in the words of section 5, was 44 the refusalto fulfil an obligation.” The present action is for damages onaccount of the defendants’ wrongful action in removing forty cooliesfrom the plaintiff’s gang ; in the language of section 5 the 44 causeof action ” is 44 the infliction of an affirmative injury.” It is plain tome, apart from authority, that the causes of action are not identical.
It was said by De Grey C.J. in Kitchen v. Campbell1 that in casessuch as the present one a great criterion of the identity of causes ofaction is that the same evidence will maintain both actions. Applyingthis test to the present case, it is obvious that the evidence whichwould be sufficient to maintain the Court of Requests action would notsupport the present action ; and, conversely, the evidence required toprove the present action would not prove the claim in the Court ofRequests. The reasoning of Bowen L.J. in Brunsden v. Humphrey?.where the similarity between the two actions was far closer than in thepresent case, appears to me to be applicable here. This was a decisionon the ancient rule of the common law, on which sections 34 and 35 ofour Code of Civil Procedure are founded, namely, that44 where one isbarred in any action, real or personal, by judgment, demurrer, con-fession, or verdict, he is barred as to that or the like action of the likenature for the same thing for ever.” It was there held that damageto goods and injury to the person, although they have been occasionedby one and the same wrongful act, are infringements of differentrights, and give rise to distinct causes of action ; and, therefore, therecovery in an action of compensation for the damage to goods is nobar to an action subsequently commenced for injury to the person.
With regard to section 406, it is clear that there is nothing in thatsection to bar the present action. The subject-matter of the actionin the Court of Requests is obviously not the same as the subject-matter in the present action.
In the view which I take of this case, it has been unnecessary toconsider whether, if the plaintiff would have been precluded frombringing this action against the second defendant alone, he.wouldstill be able to maintain it against the second defendant jointly withthe Kalutara Company. I would set aside the judgment of theDistrict Judge and remit the action for trial in due course of law.The appellant is entitled to the costs of the appeal.
1 2 \ BL 827.2 L. H. 14 Q. B. D. 148.
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The question to be decided in this case was whether the learned May 16J911District Judge was right in holding that the withdrawal of No. 5,767, Au^^amvC. R. Kalutara, and the decree therein was res judicata of the first v. The Kalu-two causes ot action in the plaint in the present action.Co'* ****'
The District Judge held that the real cause of action in the Courtof Requests case, as in the present one, was the alleged wrongfultransfer of the coolies. This, I think, is not correct. The cause ofaction in the Court of Requests case was an alleged breach of impliedcontract in the non-payment of "pence money.” The presentcause <rf action is tort by the alleged wrongful and unlawful transferof a number of coolies from the plaintiff’s gang to that of anotherkangany.
When the Court of Requests case was instituted, the allegedtortious act of the defendant had not apparently been disclosed,and the defendants’ answer in that case developed what is nowsaid to be the tort for which the plaintiff is suing here.
There is nothing to show that at the time of the institution of theCourt of Requests case the plaintiff was aware that he could haveclaimed any other relief than that sought for in the Court of Requestscase, and I think, therefore, that under section 207 of the CivilProcedure Code he is not now estopped from claiming the reliefdemanded in the present action. In Amanat Bibi v. Imdad Husani,L
Lord McNaghten said "a right which a litigant possesses,
without knowing or ever having known that he possesses it, can
hardly be regarded as a portion of his claim”
The plaintiff might very well have supposed that the defendantswere only neglecting or refusing to pay the " pence money,” while inreality defendants were doing an act which in its effect against theplaintiff may be deemed a tortious act. When this is disclosed bythe defendants’ answer, it would be, I think, most unreasonable tohold plaintiff was estopped from bringing his action for the newcause of action so developed. I think, therefore, plaintiff is notestopped by section 34 of the Civil Procedure Code.
It is argued, however, for the respondents, that the second issuesuggested by plaintiff's proctor in the Court of Requests case is infact the material issue in the present case, and that " the matter inissue, thevtest of res judicata, is the same.” I think the answer tothis is that the issues, though suggested, do not appear to have beenagreed to or tried, and the case was. settled and withdrawn on thefooting of a payment of " pence money ” due, without any findingon the question now desired to be raised,
I do not think that plaintiff is barred by section 406, as he hadleave to withdraw his claim, the subject-matter of which was breachof contract, while in the present action the subject-matter is analleged unlawful act.
1J. L. R. 15 Cal. 808.
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AUagaaamyv. The Kalu-tarn CoLtd.
As regards the parties to the action, as there is, in my opinion,no res judicata on the grounds discussed, the question as to theiridentity does not arise.
As regards the decision in the cab case of Bruttsden v. Humphrey,*I think that there was, if I may respectfully say so, a very greatdeal to be said in favour of the view taken by Lord Coleridge C.J. ;that there was only one cause of action, though in respect of differentrights, and I am much inclined to think that if such a case aroseiq Ceylon, considering the definition of cause of action in section 5of the Procedure Code, it would not be possible to say logicallythat the first action was not res judicata of the second. I wouldallow the appeal with costs.
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