Jdyawardene v. Arnolishamy
1966 Present: H. N. G. Fernando, C.J., and Samerawickrame, J.H. J AYAWARDENE, Appellant, and W. A. ARNOLISHAMYand another, Respondents
S. C. 50711965—D. C. AvissaweUa, 10954jL
Civil Procedure Code—Section 406—Withdrawal of action—Leave of Court to bringfresh action not obtained—Effect on right of plaintiff to bring fresh action—Rea judicata—Inapplicability of such plea—Difference in effect between with-drawal of action and consent decree.
The term “ aubjeot-matter ” in section 406 of the Civil Procedure Code doesnot mean the property in respect of which an action is brought. It includesthe facts and circumstances upon which the plaintiff’s right to the relief claimedby him depends.
The dismissal of an action upon its withdrawal by the plaintiff gives riseto the statutory bar provided for in section 406 (2) of the Civil Procedure Code.It does not, however, provide the basis for a plea of res judicata properly sotermed, because there is no adjudication. That the decision of the questionsraised in the action that was withdrawn, had it proceeded to judgment, wouldhave been decisive in respect of some of the issues that arise in the subsequentaction is of no moment if the subject matters of the actions are not the same.
Plaintiff, alleging that an act of trespass was committed on his land Goda-poragahawatta by X and certain other persons who disputed his title to theland, sued the trespassers in action No. 9808 for declaration of title to the land.He later withdrew the action on 30th September 1960 without obtaining fromthe Court leave to bring a fresh action. The action was therefore dismissed,and, of consent, there was no order as to costB. Subsequently the plaintiffinstituted the present vindicatory action against X and the 2nd defendant inconsequence of a different act of trespass committed by them on the same landon 3rd 'March 1963. The defendants stated that the alleged trespass wascommitted by them on land Jambugahawatta and not on land Godapora-gahawatta. They admitted plaintiff’s title to Godaporagahawatta and pleadedthat the plaint and decree in Case No. 9808 was res judicata between the plaintiffand themselves.
Held, that the subject-matter of the present action was not the same asthe subject-matter of action No. 9808. The withdrawal and dismissal of theearlier action No. 9808 could not, therefore, preclude the institution of thepresent action by reason of the provisions of section 406 (2) of the CivilProcedure Code. Nor could the decree in that action support the plea ofres judicata properly so termed.
’PEAL from a judgment of the District Court, AvissaweUa.
R.Manikkavasagar, for Plaintiff-AppeUant.
Ralph de Silva, for Defendants-Respondents.
Cur. adv. imil.
SAMERAWICKRAME, J.— Jayawardene v. Amolishamy
December 21, 1966. Samerawickrame, J.—
The plaintiff-appellant instituted this action against the 1st and 2nddefendants-respondents for declaration of title to a land called Goda-poragahawatta. In his plaint he alleged that the defendants, duringthe night of the 3rd March, 1963, forcibly and unlawfully entered thesaid land and erected a hut there.
After two surveys of the land had been made, one at the instance ofeither party, the defendants-respondents filed amended answer inwhich they stated that they were entitled to a share in a land called Jambu-gahawatta, which was depicted as Lots 1, 2, and 11 in Plan No. 1147/64filed of record, and that they put up a hut on that land. They alsostated that the land called Godaporagahawatta is Lots 3 to 10 in PlanaNos. 968 and 1147/64, and that they never disputed title to any portionof that land. They further pleaded that the plaint and decree in caseNo. 9808 was res judicata between the plaintiff and themselves.
In action No. 9808 of the District Court of Avissawella, the plaintiffappellant filed action against the present 1st defendant and some otherparties claiming a declaration of title to the land called Godaporagaha-watta. In his plaint, he alleged that the defendants in that case weredisputing his title to the said land for the past five years, and that inspite of the protests of himself and the other co-owners, they had put upa boutique on the said land. The decree in action No. 9808 ha3 beenproduced marked D2, and it shows that that action was withdrawn andwas dismissed on the 30th September, 1960. No permission of Courtto institute a fresh action for the subject matter of the action is statedto have been obtained.
At the trial, the following issue was raised and taken up for decisionas a preliminary issue—
“ Is the decree in Case No. 9808 D. C. Avissawella res judicata
between the plaintiff and the defendants in this case. ”
The learned Judge made order answering the issue in the affirmativeand dismissing the plaintiff’s action with costs.
The question is whether the withdrawal of action No. 9808 D. C. Avissa-wella precluded the plaintiff from instituting the present action. Section406 of the Civil Procedure Code states as follows :—
(1) If, at any time after the institution of the action, the court issatisfied on the application of the plaintiff—
that the action must fail by reason of some formal defect,
that there are sufficient grounds for permitting him to
withdraw from the action or to abandon part of hisclaim with liberty to bring a fresh action for the subject-matter of the action, or in respect of the part so abandoned,the court may gmnt such permission on such terms as to oostflor otherwise as it thinks fit
SAMERAWICKRAME, J.—Jayawardene v. Amoliehamy
(2) If tho plaintiff withdraw from the action, or abandon part of hisclaim, without such permission, he shall be liable for such costsas the court may award, and shall be precluded from bringinga fresh action for the same matter or in respect of the same part.
The term ‘ subject matter ’ in the above provision does not, in myview, mean the property in respect of which an action is brought. Inconsidering an almost identical provision in the Indian Code of CivilProcedure in Aly Muhammad v. Karim Baksh 1 Shadi Lai C.J., who waslater a member of the Judicial Committee of tho Privy Council, stated,“ the phrase ‘ subject matter ’ is not defined in the Code but it is clearthat it does not mean property, but has reference to the right in propertywhich a person seeks to enforce ”. In a passage which has been citedwith approval by Howard C.J. in Kanapalhipillai v. Kandiah2, Chitaloystates, “ the term ‘ subject matter ’ means the plaintiff’s cause of actionfor his suit, and a suit for different cause of action is, therefore, not barredunder this rule even though the suit may relate to the same property.Conversely, a suit based on the same cause of action as the first one isbarred I do not think that cause of action in this passage has themeaning given to that term in our Code by the definition. It is usedthere in a wider sense and meant both the right asserted and its denial.I am of the view that the term ‘ subject matter ’ includes the facts andcircumstances upon which the plaintiff’s right to the relief claimed byhim depends.
In the present case, the trespass alleged is stated to have taken placeon 3rd March, 1963. Action No. 9808 was withdrawn on 30th September,1960. The trespass complained of in the present action is, therefore,one which took place over two years after the termination of the earlierproceedings. In the present case, the title of the plaintiff to the landcalled Godaporagahawatta is admitted and not in dispute. In theplaint in action No. 9808 (which is the only pleading in that case produced)it was alleged that the defendants had been denying the title of thoplaintiff-respondent to that land for a period of five years before action.In the present case, the differences relate to identity of the corpus of theplaintiff’s land without any dispute regarding the title of the plaintiffto his land ; in action No. 9808 the dispute as to the title of the plaintiffis alleged. It cannot be said, therefore, that the subject matter of thepresent action is the same as the subject matter of action No. 9808.Accordingly, the dismissal of that action would not preclude the insti-tution of the present action by reason of the provisions of Section 406 (2)of the Civil Procedure Code.
Learned counsel for the defendants-respondents conceded that, inany event, the dismissal of action No. 9808 could not bar the action asagainst the 2nd defendant-respondent as he was not a party to that case.
Learned counsel for the defendants-respondents however went furtherand argued that the decree in action No. 9808 was one made of consentand that it would support the plea of res judicata properly so termed.
*(1942) 44 N. L. R. 42.
* A. I. R. 1933 Lahore 943.
SAMERAWICKRAME, J.—Jayawardene v. Arnolishamy
The decree states “ the plaintiff's application to withdraw the actionbeing allowed, it is ordered and decreed of consent that the plaintiff’saction be and the same is hereby dismissed without costs
The plaintiff who desires to withdraw his action is entitled to do soand the Court has necessarily to enter an order of dismissal. The consentof the defendants, therefore, could not have been to the dismissal of theplaintiff’s action but to its dismissal without costs. I am, therefore, of theview that for this purpose the dismissal must be treated as one made inconsequence of the withdrawal of the action by the plaintiff.
The dismissal of an action upon its withdrawal by the plaintiff givesrise to the statutory bar provided for in Section 406 (2). It does not,however, provide the basis for a plea of res judicata properly so termed,because there is no adjudication. Where a partition action was with-drawn and the claims made in that action was set up again in anotheraction brought subsequently, Justice Gratiaen said, “ As there had beenno formal adjudication in the earlier action regarding these competingclaims, the doctrine of res judicata, in the strict sense of the term, doesnot apply ”,—vide 57 N. L. R. 'page 241, at page 244. That tho decisionof the questions raised in the action that was withdrawn had it proceededto judgment would have been decisive in respect of some of the issuesthat arise in the subsequent action is of no moment if the subject mattersof the actions are not the same.
In the case of A. J. Judah v. Ramapada- Gupth *, Mallick J. put the matterthus : “ It would follow from what is stated before that if tho cause oraction which gave rise to the reliefs claimed in the subsequent suit didnot arise when the previous suit was instituted and withdrawn in thesense that one important event absolutely essential to complete the causeof action in the subsequent suit did not take place, then the subjectmatter of the two suits must be different and 0.23, R. 1 (3) has no appli-cation. It may be that for successful determination of the suit allegedto be hit by the mischief of 0.23 R. 1 (3) questions and issues havo to bedecided which were substantially at issue in the previously institutedsuit, but that in my judgment does not make the subject matter in thetwo suits to be the same. If the previous suit was decided against the ‘plaintiff then the decisions on those issues either expressly or construc-tively must have been taken to have been decided against the plaintiffand the subsequent suit would fail because of the principles of res judicataembodied in S. 11 of the Code. If however the suit was not decidedbut merely withdrawn, no question of res judicata arises and in lawthe plaintiff is still entitled to agitate the question in Court. The argu-ment advanced by Mr. Das in substance and in fact is an attempt toextend the principles of res judicata to cases in which there has beenno adjudication by the Court. In my judgment, the principles of S. 11and 0. 23 R. 1 (3) are different and it is not permissible to apply theprinciples of res judicata to cases under O. 23 R. 1(3).”
It is true that a consent decree supports a plea of res judicata properlyso termed, even though there was no adjudication by Court. This is1 A. I. R. 1959 Calcutta 715 at page 723.
SAMElt.VN'l'CKKAME, J.—Juyatvardene e. Arnolishwn't
because such a decree implies a decision upon the rights in dispute atthe action by the parties. From the withdrawal of an action, no suchdecision as to the rights in dispute in the action can be implied. Infact, as pointed out by My Lord the Chief Justice at the argument, theplaintiff may withdraw his action because the defendant has made fullamends in respect of the claim made by him.
The learned Judge stated in his judgment that having withdrawn thoearlier action without permission to file a fresh action, the plaintiff ineffect stated that he could not maintain his action for a declaration oftitle against the defendants. Even if the learned Judge is right insaying that from the withdrawal of this action a statement by the plain-tiff that he could not maintain the action must be implied, such a state-ment had reference to the circumstances obtaining at the time he made it.In the present action, the title of the plaintiff to his land was notdisputed and the action itself is brought upon a trespass alleged to havetaken place nearly two jears after the termination of the earlierproceedings. Accordingly, even if the plaintiff were unable to maintainthe earlier action, it does not follow that he is precluded from bringingthis present action, based as it is upon different facts and circusmtances.
There were references in the proceedings to the fact that answer hadbeen filed in action No. 980S. No copy of the answer has however beenproduced. It is incumbent upon a party who makes a plea of res judicatato place before Court material necessary to show what the matters werein dispute in the earlier action and that matters in dispute in the actionunder consideration are the same.
Spencer Bower states “ It follows that, in strictness, the burden ison the party setting up the estoppel of alleging and establishing thisidentity of subject matter—that is to say, that his opponent is seekingto put in controversy and re-agitate some question of law, or issue offact, which is the very same question or issue which has already beenfinally decided between the same parties by a tribunal of competentjurisdiction. Where there are no pleadings or particulars, the identitymust be established by evidence. ”—vide The Doctrine of Res Judicataby George Spencer Bower, page 115.
It would appear therefore that the defendants-respondents havefailed to place before Court the material necessary to support a pleaof res judicata even if they were entitled to put forward such a pleaupon the order of dismissal of action No. 9808 on an application towithdraw by the plaintiff.
I hold that the preliminary issue should have been answered in favourof the plaintiff-appellant. I accordingly set aside the order of the learnedJudge and send the case back for trial in due course of law, upon theother issues that arise. Tho defendants-respondents will pay to theplaintiff-appellant his costs of appeal as well as the costs of the trialdate, 7.9.65, on which date argument on the preliminary issue was heard.
H. N. G. Fernando, C.J.—I agree.
Order set aside.
B. H. JAYAWARDENE, Appellant, and W. A. ARNOLISHAMY and another, Respondents