Present: Pereira J.
ABUNACHALAM m MOHAMADU.
2—C. JR. Colombo, 33,295.
Claim in reconvention—Came of action accruing after the filing of actionr—Civil Procedure Code, 8. 75.
A claim in reconvention may be made in respect ob a cause ofaction that accrued at any time before the filing of the answer.It is not necessary that the cause of action should have arisenbefore the institution of the action.
I HE facts are as follows. The appellants were sued in case
.X No. 88,295 of the Court of Bequests of Colombo on apromissory note to recover the sum of Bs. 268.10, further interest,and costs of suit.
Judgment was entered against the appellants without theirknowledge, and when .the second appellant was arrested on awarrant issued in the. case, he deposited the whole amount of .theclaim, and the appellants filed affidavit averring – that the summonsin the case had not been served on them, and moved to re-openjudgment.
The judgment was re-opened, and the appellants filed answerdenying their liability on the note sued on, and the second appellant
( 256 )
claimed from the respondent a sum of Bs. 800 in reconvention byway of damages sustained by him by reason of wrongful arrestunder the warrant issued in the case..
On the day of trial the following five issues were suggested;—
Has the note sued upon been* discharged?
Whether the' note was duly presented at the Bank of
Madras for payment?
(8) Was there service of summons and writ in this case on thedefendants?
If not, was the arrest of the second defendant on the
If so, what damages is the second defendant entitled to?
The learned Commissioner made the following order:—
After hearing argument I adopt the first two issues, and leave theremainder for the defendants to bring another action if they choose.I hold that a .claim in reconvention can only be allowed on the relativeposition of the parties as they were at the time of the institution ofaotion, and not on any cause of action arising since.
The parties went to trial on the first two issues, and judgmentwas entered for the plaintiff.
The defendants appealed. .
Arulanandam, for defendants, appellants.—Section 75 of the CivilProcedure Code. makes it clear that a claim in reconvention is tobe regarded as a cross-action. There is therefore no reason whythe defendants should not claim damages on a cause of action whichwas in existence at the' time of the filing of the answer. Counselcited .396—C. R. Panadure, 11,10s1 Beddall v. Maitland2 is anexpress authority on the point. The underlying principle of ourCode is the prevention of a multiplicity of actions.
Bartholomeuaz, for respondent, relied on 2 8. C. B. 83.
Arulanandam, in reply.—The English section interpreted byBeddall v. Maitland2 is in substance the same as section 75 of ourCode.
Gut. adv. vult.
February 24, 1914. Pereira J.—
Judging from the principles laid down in the case of Beddall v.Maitland2. I .think that a claim in reconvention may be made inrespect of a cause of action that accrued at any time before thefiling of the answer. I set' aside the decree, and remit the case tothe Court below for adjudication on the claim in reconvention andfor final judgment and decree thereafter. The evidence alreadyrecorded will remain as evidence in the case. The appellant willhave his costs of appeal, but other costs will abide the event.
* L. R. Ch. D. 1U.
1 S. C. Civ. Min., Dec. 8,1913.
ARUNACHALAM v. MOHAMADU