Fernando v. The Village Council of Andiambalama Palatha
Present: Udalagama, J., Sharvananda, J., andKatwatte, J.
J. R. A. FERNANDO, Appellant, and THE VILLAGECOUNCIL OF ANDIAMBALAMA PALATHA, RespondentS. C. 46/71 (F)—D. C. Negombo 1884/M
Civil procedure Code—Sections 34 and 207—One transaction gives riseto two distinct causes of action—Two actions instituted in respectof each cause of action—Plea of Res Judicata.
Where one transaction gives rise to two distinct causes of actionneither section 34 nor section 207 of the Civil Procedure Coderequires a plaintiff to include both causes of action in the samesuit.
“ It is essential to determine when a plea in bar is raised on theallegation that there has been a splitting of a cause of action suchas prohibited by section 34 or by reason of res judicata in termsof section 207 whether the two suits really relate to the infractionof the same or a different right.”
SHARVANANDA, J.—Fernando v. The Village Council of Andiambalama Palatha 5
‘ ^ PPEAL from a judgment of the District Court of Negombo.
G. F. Sethukavalar, with John Kitto, for the Plaintiff-Appellant.
J. W. Subasinghe, for the Defendant-Respondent.
Cur. adv. vult.
March 5, 1975. Sharvananda, J.—
By notice dated 10.10.61 PI the defendant Village Councilcalled for tenders in respect of three beef stalls. The noticestipulated that three months' lease money mentioned in thetender or an amount not less than l/4th of the amount mentionedin the tender should be deposited in the Village Committee nosooner the tender is accepted and that after deducting moneydue to the Village Council, if any, the balance will be paid tothe tenderer at the end of the year. The plaintiff was thesuccessful tenderer for the year 19G2 in respect of the beef stalls.By letter dated 13.11.1961., the defendant-council notified theplaintiff that ‘‘ it was decided to accept your tenders for leasefor the year 1962 ” and called upcn him to make three monthsdeposit in a total sum of Rs. 2022 as stated in the tender. Theplaintiff duly made the deposit. On 7.4.62 three contracts wereentered into between the plaintiff and the defendant, twonotarially executed and the third also in writing, but notnotarially executed.
By letter dated 11.4.62 the defendant terminated the threeagreements with effect from 30.4.62. By his plaint, in this actionNo. 1884/M, dated 20th October, 1967., the plaintiff complainsthat the defendant Council had wrongfully and unlawfully re-pudiated and cancelled the aforesaid three agreements dated7.4.1962 and that by such unlawful repudiation and cancellationhe had suffered in the aggregate loss and damage which heestimated at Rs. 47,946.72 and sued for judgment in that amount.
The defendant, by its answer, denied the claim of the plain-tiff and inter alia took up the pos-'tion that the judgment anddecree entered in case No. 1015/M of the District Court ofNegombo operated as res judicata between the parties underSection 207 of the Civil Procedure Code ; in as much as, theplaintiff could have and should have claimed the relief he isclaiming in the instant case in the said case No. 1015/M D.C.Negombo.
!*•—A 17340 (75/10)
6 SHARVANANDA, J.—JPernandov.The Village Gjuncilof Andlamjala.nzPaUtha
Several issues were raised at the commencement of tne trial.But the learned District Judge decided to try the issue oi resjudicata as a preliminary issue. Certain documents and procee-dings in D.C. Nsgombo No. 1015/M were marked in evidence andafter arguments the District Judge answered the preliminaryissue 1 :
“ Does the decree in D.C. Negombo No. 1015/M operate asres judicata in respect of any one or more of the causes ofaction pleaded in the plaint ? ”
in the affirmative and holding that the plaintiff cannot have andmaintain this action dismissed the plaintiff’s action with costs.The plaintiff has appealed to this Court against the said judg-ment. The plaintiff submits that the causes of action pleaded inthe two cases are different and distinct and that the decree in D.C.Negombo 1015/M does not operate as res judicata to estop theplaintiff from maintaining this action.
Action No. 1015/M yas instituted earlier by the plaintiffagainst the defendant-council for the recovery and the returnof the sum of Rs. 2022 deposited by the plaintiff on 14th Novem-ber, 1961 in response to defendant’s letter dated 13.11.1961 referr-ed to above. In the plaint in that case, the plaintiff stated thatas required by the defendant, he deposited the sum ofRs. 2022 with the defendant-council and obtained the right to sellmeat in the defendant’s three stalls and in paragraph 6, averredthat by letter dated 11th April, 1962 the defendant-council wrong-fully and unlawfully cancelled the said contract with effect from30th April,. 1962. In paragraphs 7 and 6 of the plaint he statedthat he had paid up fully the monthly rentals for the meatstalls during the period 1st January, 1962 to 30th April, 1962 ;and that no sum whatsoever was due to the defendant-councilfrom him in respect of the said contract and that in spite ofseveral demands made by him, the defendant-council waswrongfully refusing to pay back the said sum of Rs. 2022deposited by him. He concluded that a cause of action had thusaccrued to h'm to sue the defendant-council for the return ofthe aforesaid deposit to him. Action No. 1015/M proceeded to trialon the following issues, inter alia, raised by counsel forplaintiff:
Has the defendant-council wrongfully and unlawfully
cancelled the said contract with effect from 30.4.1962 ?
Is the defendant-council wrongfully refusing to pay back
the Rs. 2022 deposited by the plaintiff ?
If issue 2 is answered in the affirmative, is the plaintiff
entitled to recover the said deposit ?
SHAKVANANDA, J.—F emaruio v. The Village Council of AndiambalamaPalatha 7
At the end of the trial, the above issues were answered in theaffirmative. Judgment was entered for the plaintiff in a sum ofK.s. 2,022 less Rs. 674 representing the rent for the month of April,1962. An appeal to the Supreme Court was preferred by thedefendant-council but the appeal was dismissed.
At the hearing of the present appeal, counsel for the defendant-respondent referred to sections 34 and 207 of the Civil ProcedureCode, and argued that the alleged wrongful termination of thehire agreements by the defendant-council with effect from30.4.1962 gave rise to only one cause of action entitling theplaintiff to sue in one action for the recovery of damages forwrongful cancellation and for the return of money depositedwith the defendant. Since the plaintiff had failed to include thepresent claim for damages in action No. 1015/M, it was arguedthat he was barred by section 34 from maintaining this action.That section provides that:
“ every action shall include the whole of the claim whichthe plaintiff was entitled to make in respect of the cause ofaction and that if a plaintiff omits to sue in respect of orintentionally relinquishes any portion of his claim, he shallnot afterwards sue in respect of the portion so omitted orrelinquished
Section 207 states that :
“ every right of property, or to money or to damages, orto relief of any kind which can be claimed, set up, or put inissue between the parties to an action upon the cause ofaction for which the action is brought, whether it be actuallyso claimed, set up or put in issue or not in the action becomeson the passing of the final decree in the action, a res judicatawhich cannot afterwards be made the subject of action forthe same cause of action between the same parties ”.
These two sections thus operate as a bar to the institution of asecond action not only as to matters actually pleaded and triedbut also as to matters which might and ought to have beenpleaded and decided. For the former suit to operate as a bar to asubsequent action, the earlier suit should have been founded onthe same cause of action or there should be identity of causes ofaction. It is essential to determine when a plea in bar is raisedon the allegation that there has been a splitting of a cause ofaction such as prohibited by section 34 or by reason of resjudicata in terms of section 207 whether the two suits reallyrelate to the infraction of the same or a different right. Aplaintiff is not required by these sections to include two causes of
8 SH ARYAN AND A, J.—Femandov. The Village Council of Andiambalama Palaiha
action in the same suit. The rule contemplates a separate suitin respect of each distinct cause of action. If a cause of actionfor a certain claim or for certain remedies accrues to the plain-tiff and if he chooses to bring an action only for a part of theclaim or for some of the relief which were available to him,he is precluded from maintaining a second action as regardsthe rest of the claim or for the other remedies arisingfrom the same cause of action. The rule does not, however,require that when several causes of action arise fromone transaction the plaintiff is bound to sue for all of themin one suit. This section is directed against two evils, namely,splitting of claims and the splitting of remedies in respect of oneand the same cause of action. As was said by the Privy Councilin Palaniappa vs. Saminathan 17 N.L.R. 56.
" Section 34 is directed to securing the exhaustion of therelief in respect of a cause of action and not to the inclusionin one and the same action of different causes of action, eventhough they arise from the same transaction ”,
In the case of Josephine Morals v Victoria 75 N.L.R. 145, thePrivy Council held recently that where a plaintiff is assertinghis ownership of and right to possession of several distinct pro-perties yielding different incomes, then even though the title tothem arises under the same document and the defendant denieshis title and right to possession to all of them at the same timeand on the same grounds, he has a separate cause of action inrespect of each property. Accordingly, he is entitled to institute arei vindicatio action against the defendant in respect of some ofthe properties and another such action against the same defen-dant subsequently in respect .of the other properties. In suchcircumstances, section 34 cannot bar the institution of the secondaction, even though the plaintiff knew when he started the firstaction the full extent of his claim under the same deed to all theproperties covered by the two actions and could have combinedboth claims in the first action.
To determine whether in any case the causes of action are thesame it is first of all necessary to determine what was the causeof action in the former suit. This cause must be sought for withinthe four corners of the plaint. A cause of action refers entirelyto grounds set forth in the plaint or, in other words, to the mediaupon which the plaintiff asks the Court to arrive at a conclusionin his favour, and has no relation whatever to the defencewhich may be set up by the defendant.—per Lord Watson inChand Kans vs. Partap Singh 15 I.A. 156 P.C. quoted withapproval in Samichi vs. Pieris 16 N.L.R. 257 at 261.
SHARVANANDA, J.—Fernando v. The Village Council of AndtambalamaPalatha 9
In case No. 1015/M the cause of action pleaded was the defen-dant’s refusal to fulfil a contractual obligation (section 5 of theCivil Procedure Code) i.e., to return the security deposited withthe defendant on the cancellation of the agreement. By clause21 of agreements No. 27 and 28 dated 7th April 1962 marked P3and P4 it was stipulated between the parties that “ on the expi-ration of the contractual period i.e. 31.12.1962 or on cancellationof the agreement, the plaintiff shall deliver peaceful possessionof the stall assigned to him and shall be entitled to a refund ofthe amount in deposit or such portion of it as may not haveeen forfeited in terms of the conditions of the agreement ”.Admittedly, the agreements were cancelled on 30.4.1962 prior tothe expiration of the term of one year referred to in the agree-ments. Whether the cancellation was wrongful or not, the plain-tiff would have been entitled on the factual cancellation of theagreement, to the refund of the security deposited unless he hadforfeited any portion thereof in terms of the conditions. True, inthe plaint and issue in case No. 1015/M, the plaintiff contendedthat the termination of the contract with effect from 30.4.1962 waswrongful and unlawful. It was not necessary for the plaintiff toallege and prove that the cancellation was wrongful and unlawfulto make out his right to the relief claimed by him i.e., the refundof the security deposit in terms of the agreements dated 7.4.1962.Nor was the justification of the cancellation alleged in the defen-dant’s answer relevant to determine the plaintiff’s cause of action.In that view of the matter, all that the plaintiff was entitled toclaim on the cause of action set out by him in case No. 1015/Mwas the refund of the security deposit only. The wrongful can-cellation of the agreement, as pleaded in the present actionNo. 1884/M is the cause of action which gave the occasion for andformed the foundation of the present suit for the recovery ofdamages for breach of contract. That cause of action may stemfrom the same transaction as the cause of action in caseNo. 1015/ M but is distinct from the other—the grounds ofcomplaint are different. The plaintiff could have included the .present claim in the earlier action, but it was not obligatory onhim to include the present claim in the earlier action. Each actionreferred to separate and independent obligations—Saibo vs. Abu-thahir 37 N.L.R. 319 ; Kandiah vs. Kandasamy 73 N.L.R. 105. Theplaintiff was not bound by the provisions of sections 34 and 207or by any other rule of res judicata to incorporate both claimsor causes of action in one action or to reserve with the leave ofthe Court his right to sue the defendant council for damages inrespect of the 2nd cause of action.
In my view, the District Judge has erred in upholding the pleaof res judicata and dismissing the plaintiff’s action. He should
Weerasinghe v. Rev. Pandit Dickwella Nayaka Thero
have answered issue 1 in the negative and issue 2 in the affirma-tive and proceeded to invest gate the other issues. I set aside theorder of the District Judge made on 28.1.1971 and send the caseback to the District Court for further trial in respect of the otherissues that have already been framed or may be framed. Theplaintiff-appellant will be entitled to the costs of this appeal andof the costs of the trial held on 16.10.1970. Other costs will becosts in the cause.
Udalagama, J.—I agree.
Katwatte, J.— I agree.
Order set aside.
D. J. R. A. FERNANDO, Appellant, and THE VILLAGE COUNCIL OF ANDIAMBALAMA PALATH