Krlahnar v. Thurairajah
1959Present : Sansoni, J., and H. N. G. Fernando, J.
M. ICRISHNAR el al., Appellants, and K. S. THURAIRAJAH,
S. G. 590—D. C. Jaffna, 432]L
Res judicata—Scope of rule—Applicability as between co-defendants—Action undersection 24'/ of Civil Procedure Code—Is judgment-credit or privy of thejudgment-debtor ?
A judgment-creditor instituted an action xnder section 247 of tho CivilProcedure Code making tho claimant and tho judgment debtor eo-defendants.A previous decroo entered in favour of tho claimant as against tho judgment-debtor by virtue of an order of consent and without investigation of title waspleaded by tho claimant as res judicata.
Held, that tlio rule of res judicata is applicable as botwoon co-dofondantsprovided only that three conditions are satisfied :—(1) Thoro mu.-t bo a conflictof interests between the defendants concerned ; (2) it must bo necessary todecide this conflict in order to give the plaintiff the reliof ho claims ; (3) thoquestion between the defendants must have been finally decided.
Two lands A and 33 together formed one allotment. In action No. 1tho plaintiffs sued the defendant for a declaration ot title to land A. An orderwas mode of consent that the plaintiffs’ action be dismissed unless they paid totho defendant before a certain dato the costs of a provious dato of trial. Thosecosts not having boon paid, tho action was dismissed in torms of tho consentorder. Subsequently, in action No. 2, the same plaintiffs sued the same defen-dant for a declaration of titlo in respect of land 33.
Held, that the decree ii action No. 1 was no bar to the claim in action No. 2,dospito tho fact that the defendant had in action No. 1 claimed titlo to tho ontiroland.
H. N. G. FERNANDO, J.—Krishnar v. Thar a! rajah
-A-PPEAL, from a judgment of the District Court, Jaffna.
S. Sharvananda, with A. Nagendra, for the plaintiffs-appellants.
Frederick W. Obeyesekere, for the defendant-respondent.
Cur. adv. mdt.
July 24, 1959. H. N. G. Fernando, J.—
The plaintiffs in this action, stating themselves to be the Trustees of acharitable trust, sued for a declaration of title in respect of a land called“ Paruththikadu and other parcels ” in extent 23 1ms. and 16kls. In thedescription set out in the Schedule to the plaint, reference is made to aland on the East of 3 1ms and 2 kls alleged to be in the possession ofthe defendant, and it is stated that the two lands together formed oneallotment.
Of the issues framed at the trial, the Judge decided only issue No. 4 :—
“ Do the judgments and decrees in D. C. Jaffna cases Nos. 4853and 10233 operate as res judicata between the parties ?**
Action No. 4853 was filed by the plaintiffs against the present defendantin September 1948 for a declaration of title to the land of 3 1ms and 2 klsreferred to above. On 29th August 1949 an order was made of consentthat plaintiffs’ action be dismissed unless they paid .to the defendantbefore 19th October 1949 the costs of the last date of trial. These costsnot having been paid, action No. 4853 was dismissed on 26th October1949 in terms of that consent order. An appeal against the dismissal ofthis action was itself dismissed by the Supreme Court on 14th May 1951.
In an action No. 8342 one Muttucumaru sued the present plaintiffs(in their capacity as Trustees) on a money claim, and obtained decree.The land of 27 1ms, i.e. the two allotments one of 23 1ms 16 kls involvedin the present plaint and the other of 3 lms and 2 kls involved in actionNo. 4853, was seized in execution of that decree, but the land was suc-cessfully claimed by the present defendant. Thereupon Muttucumaruinstituted a section 247 action against the present defendant. He addedthe present plaintiffs also as defendants, stating that their title was inissue, but claiming no relief as against them. In both actions, namelyin No. 4853 and the section 247 action, the present defendant set up thesame title referring to a deed No. 11502 and claiming thereon the landof 27 lms, and in the section 247 action he pleaded that the decree inNo. 4853 was res judicata. This plea was rejected in the DistrictCourt, but upheld on appeal to this Court, the judgment dismissingMuttucumaru’s action being delivered by myself. It appears from thejudgment that the question mainly argued was .whether a judgmentcreditor is a privy of his judgment debtor for the purposes of resjudicata, and that question was answered in the affirmative.
BE. N. G. FERNANDO, J.—Krishnar v. Thurairajah
In the present action the defendant has again set up the plea of resjudicata, relying on the dismissal of the plaintiffs’ earlier action No. 4853and of the subsequent section 247 action in which the plaintiffs had beenadded as defendants, and the District Judge has upheld the plea on bothgrounds.
It is convenient to consider first whether the decree in the section 247action can be pleaded as res judicata against the plaintiffs, who wereadded as defendants in that action. In Hinni A.ppu v. Ounaratne 1Canekeratne, J., sitting alone held on very similar facts that personsthus added as defendants in a section 247 action could not, by reason ofthe dismissal of the section 247 action, be subsequently met by a pleaof res judicata in an action between themselves and the principal de-fendants in the section 247 action. He thought that the added defendantsin such a case were merely formal parties, and not being necessary partieswere not affected by the decree in the section 247 action : and he didnot regard as material the fact that one of the added defendants had inthe section 247 action given evidence in support of the case for the plain-tiff in that action.
In the case just mentioned, attention does not appear to have beendrawn to the decision of the Privy Council in the Indian case of MunniHibi v. Tirloki Nath Of the complicated facts, it is sufficient to notethe following for present purposes. A judgment creditor of one Ahad sued a claimant in an action corresponding to that under our section247 ; the claimant was defendant, but the judgment debtor’s heir, oneMunni was joined as a defendant; the action was successful and thejudgment-creditor held entitled to realize his claim by the sale of theproperty seized, on the footing that the judgment-debtor had title.The property was, however, not sold in execution of that decree. Sub-sequently the judgment-debtor’s heir, Munni, sued the former claimant,and succeeded on the ground that the earlier judgment opei’ated asres judicata. The Privy Council held that the rule of res judicata appliesas between co-defendants if three conditions are satisfied :—(1) Theremust be a conflict of interests between the defendants concerned ; (2)it must be necessary to decide this conflict in order to give the plaintiffthe relief he claims ; (3) the question between the defendants must havebeen finally decided.
It will be seen that in the case before us, a claimant who was successfulin the section 247 action invokes the rule of res judicata as against theadded co-defendant in the former action, whereas in the Indian case,it is the added co-defendant who invokes the rule as against the formerco-defendant. Put the Privy Council judgment makes it clear that therule would apply in the situation with which we are dealing.
Nevertheless, I hesitate to hold that the circumstances before us justifythe application of the rule. It is important to 'note that in the case
1 (1946) 47 Ar. L. R. 415.
■ a (1931) A. I. R. Privy Council 115.
H. N. G-. FERNANDO, «T.—Krishnar v. Thttrairajah
before the Privy Council, tbere bad. been in the earlier decision an ad-judication upon title as between the two co-defendants, so that theconditions (2) and (3) enumerated above were fulfilled. In the presentcase, however, the judgment of the Supreme Court in the section 247action did not turn on the question of title as between the two co-defendants to that action. The ratio decidendi of the judgment was thata judgment-creditor is a privy of his debtor, and was therefore boundby the earlier decree entered in action No. 4853 between the debtor andthe claimant. The “ merits ” as between the two co-defendants werenot in fact investigated, for there was neither an adjudication on titlenor a decision that the land which was the subject of the section 247action was identical with the land involved in action No. 4853. Infact the judgment states that this latter question of identity was notput in issue in the section 247 action.
I would hold therefore that the question whether the decree in actionNo. 4853 operates as res judicata as between the present plaintiffs and thepresent defendant is res Integra and has now to be determined. On thisquestion also, the learned District Judge has held against the plaintiffs. .
Two points are principally relied on by Counsel for the appellants inregard to the decree in action No. 4853 :—firstly, that the decree in thataction related to a land of 3 1ms and 2 kls, whereas the present actionrelates to a land of some 23 1ms, described in the plaint in a mannerwhich makes it clear that it does not include the land of 3 1ms and 2 kls;and secondly that action No. 4853 was dismissed not on the merits butbecause the plaintiffs had failed to comply with the consent order forthe pre-payment of costs. In regard to the first of these grounds, it isargued that the decree in action No. 4853 determined only the rightto the land of 3 1ms and is final between the parties only in respect of theplaintiff’s alleged cause of action with respect to that land. The circum-stance, it is argued, that the defendant did in action No. 4853 put forwarda claim of title to a larger land does not render the decree binding asrespects such larger land. Still less, it is urged, would the decree be sobinding, because there was in fact no adjudication upon this issue raisedby the defendant, but a mero dismissal of the action on account of theplaintiffs’ default. I should add that this second point was, accordingto my recollection, not urged before this Court at the hearing of the appealin the action under section 247 to which I have referred above.
It seems to me that the plaintiffs are entitled to succeed'upon the secondof the grounds now urged, if not also upon both such grounds. InSamichi v. Pieris x, Lascellcs, C. J., while upholding a plea of res judicatacited -with approval the observations of Lord Watson in an Indian case :—<c The cause of action has no relation whatever to the defence which maybe set up, nor does it depend upon the character of the relief prayed forby the plaintiff. It refers entirely to the grounds set forth in the plaintas the cause of action, or, in other words, to the media upon which theplaintiff asks the Court to arrive at a conclusion in his favour ”.
(1913) 1G N. L. R. 257.
Holland Colombo Ltd. oj Colombo v. Su.bramaniam
This observation was acted upon by Garvin, S.P.J. in Ranholi v.JSingho et al.1 In action No. 4853 the cause of action relied on by theplaintiffs was only that a land of some 3 Ima vested in them os Trustees,that the land had been leased to-the defendant, and that the defendantsubsequently d rued the title of the plaintiffs to that land. The causeof action now agitated by the plaintiffs is that a different land vested inthem as Trustees, and that the defendant has been in unlawful possessionof this different land. "Upon the principle as expressed by Lord Watson,which has been approved in our Courts, it would seem clear that thedecree in action No. 4853 cannot affect the subject-matter of the presentaction, despite the fact that the defendant had in the earlier actionclaimed title to the entire land. It is well that I have this opportunityat least to express serious doubt as to the correctness of the view I adoptedin the judgment in the action under section 247 (S. C. 437/55, D. C.Jaffna No. L. 10233 decided on 18th July 1956).
In any event, the decree in action No. 4853 having been entered onaccount of the plaintiffs’ default, and without adjudication upon theissues raised would be no bar to a claim by the plaintiff’s to a land whichwas not the subject of that decree. It would only prevent the plaintiffsfrom again claiming as against the defendant to be vested with, or to bethe lessor of, the land which was the subject of that decree.
For these reasons I would hold that the preliminary issue No. 4 shouldhave been answered in the negative and that the case must go back to theDistrict Court for a trial on issues 1 to 3, 6 and 7. The decree appealedfrom is set aside and the plaintiffs will be entitled to the costs of thisappeal. The costs of the past proceedings in the District Court will abidethe ultimate result of the action.
Sansoni, J.—I agree.
Decree set aside.
M. KRISHNAR et al. Appellants, and K. S. THURAIRAJAH,Respondent