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FERNANDO v. FERNANDO.
D. C., Colombo, C 7,132.
Civil Procedure Code, s. 406—Withdrawal of an action with liberty tobring fresh action—Dismissal of action—Res judicata.
The power of a Court to dismiss, or allow the withdrawal, of anaction, with liberty to re-institute the case on the same cause, canbe used only on sufficient grounds set forth in the order itself.
Where the Court below did not state the special circumstanceswhich seemed to it to justify the grant of permission te re-institutethe case, but it appeared to the Supreme Court that there weregood reasons for it—Held, that the plea of res judicata raised bythe defendant against the new suit should not be upheld, andthat the plaintiff should be allowed to proceed to trial.
LAINTIFF brought, action No. 5,864 in the District Court ofColombo for a declaration of title and restoration to posses-
sion of a divided portion of a certain land. At the trial is wasdiscovered that the plaintiff’s deed upon which he based his titleconveyed to him only an undivided portion of the land. Plaintiff’scounsel thereupon moved to amend the plaint as follows:—“ That the plaintiff, although he purchased an undivided portion“ by his deed, really purchased a divided portion, and that he“ and his predecessors in title were in possession of a dividedportion.”
The Acting District Judge (Mr. Grenier) disallowed the motion,and held that he had no alternative but to dismiss the plaintiff’saction, inasmuch as the amendment suggested would have theeffect of varying the terms of the conveyance and making itconvey a divided portion, when in fact it conveyed an undividedportion. He however added, “ Under the special circumstances“ of this case, I give leave to the plaintiff to institute a fresh action," if so advised.” '
The plaintiff relying on this permission did not appeal againstthe dismissal of the action, but instituted the present actionsupplying the defects, when the defendant pleaded the judgmentof dismissal in action No. 5,864 as res judicata in bar of the plaintiff’spresent action. The case came on for hearing before the permanentDistrict Judge (Mr. Browne), who upheld the plea of res judicataand dismissed the action.
December 10and 14.
The plaintiff appealed.
Dharmaratna, for appellant.
Sampayo, for respondent, cited, D. C., Galle, 2,538-(Civil Min.,5th April, 1895), and Watson v. Collector of Raj Shaye (XIII.,Moore, J. A., 160).
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December 10and 14.
14th December, 1897. Lawrie, A.C.J.—
By the 406th section if the Court be satisfied that there are suffi-cient grounds for permitting a plaintiff to withdraw from anaction with liberty to bring a fresh action for the subject-matterof the action, the Court may grant such permission on such term9as it thinks fit.
In the action 5,864 the Acting District Judge of Colomborefused to allow an amendment of the plaint, and held that he hadno alternative but to dismiss the action, and entered a decreedismissing with costs, and added, “ under the special circumstances“ of the case I give leave to the plaintiff to institute a fresh action,
“ if so advised.”
When the plaintiff brought the present action relying on thatpermission the defendant objected, pleading res judicata. TheDistrict Judge (not he who had given the permission) held the newaction to be incompetent, that there had been no withdrawalunder the 406th section, and that by the passing of the decree ofdismissal the right claimed became a res judicata, which couldnot afterwards be made the subject of action for the same causebetween the same parties (see section 207 of the Code). He reliedon a judgment of this Court in D. C., Galle, 2,528, but it seems tome that the circumstances of that case were not on all fours withthis.
The power of a Court to allow the withdrawal of an action, withliberty to re-institute on the same cause, can be used only on suffi-cient grounds which ought to be recited ia the order. TheActing District Judge in 5,864 did not state the grounds on whichhe was satisfied : he merely said, “ in the special circumstances of“ this case I allow,” &c.
These circumstances do not now appear to me to have been very'special. I feel that it would have been better had the DistrictJudge either allowed the amendment asked for by the plaintiff,or dismissed the action without permission, but it cannot be saidthere were no ground*5 for the permission ; and as the plaintiff actedon the footing that the District Judge exercised a power which hepossessed, and relying on that permission, did not appeal againstthe dismissal of the action, I am of the opinion that we should readthe District Judge’s order favourably, and sustain the permissiongiven in the former action and permit this action to proceed totrial. I would set aside and remit for trial; the plaintiff to havethe costs of the discussion in the District Court and the costs ofappeal.
Withers, J.—I agree.
FERNANDO v. FERANANDO