Marimuttupillai v. Suppiahpulle.
Present: de Kretser J.
MARIMUTTUPILLAI v. SUPPIAHPULLE.
219—C. R. Badulla-Haldummulla, 1,202.
Estoppel—Action in Court of Requests—Defendant’s failure to counter-claim—
Like cause of action—Civil Procedure Code, s. 817.
The bar placed by section 817 of the Civil Procedure Code upon adefendant who fails to interpose in the action a claim in his favouragainst the plaintiff does not operate when the Court has no jurisdictionto entertain the claim.
The meaning of the words “ for a like cause ” in the section considered.
' 10 T. C. 133, at p. 192.1 (1933) A. C. 368.
DE KRETSER J.—Marimuttupillai v. Suppiahpulle.
PPEAL, from a judgment of the Commissioner of Requests, Badulla-Haldummulla.
W.E. Abeykoon, for plaintiff, appellant.
No appearance for defendant, respondent.
Cur. adv. vult.
March 7, 1941. de Kretser J.-—
In C. R. Kuwara Eliya, No 14,682, Suppiahpillai of Boragasketiya,the defendant in the present case, sued Marimuttupillai of Hakgala, theplaintiff in the present case. It would appear that the plaintiff’s residenceis at Boragas and that he has a branch establishment at Hakgala. Inthe Nuwara Eliya case Suppiah sued Marimuttupillai for moneyslent to him on three occasions and for the value of some cabbages sold tohim. Marimuttupillai filed answer on February 14, denying both claims.
On February 19 Marimuttupillai jjistituted the present action in theCourt of Requests, Badulla, against Suppiahpillai for goods sold anddelivered. Suppiahpillai denied the plaintiff’s claim and pleaded thatthe same was prescribed. No bar was pleaded to the maintenance of theclaim.
When the case came up for trial, among the issues framed were thesetwo : —- (a) Can plaintiff have and maintain his action as the plaintifffailed to interpose his claim as a claim in reconvention in C. R. NuwaraEliya, No. 14,682, in which defendant sued plaintiff ?(b) Was the claim
in this case due at that time ?
The learned Commissioner held in favour of plaintiff on his claim forgoods sold and delivered but dismissed his action on the ground that hehad failed to make this claim in reconvention in the Nuwara Eliya case.He held that the claim was barred by section 817 of the Civil ProcedureCode. The appeal is from that order.
This section was the subject of interpretation in two cases, viz.—Perera v. Silva1 and Perera v. Pesotnahami “. In the former case theplaintiff sued for advances made on an undertaking by defendant to leasecertain property and the defendant failed to claim in reconvention theamount due to him on a promissory note. Grenier J. held that thewords of section 817 were comprehensive enough to include a claim on apromissory note and that the claim of the defendant made in thesubsequent action was therefore barred.
In the latter case the earlier case does not appear to have been citedand de Sampayo J. held that the action was not barred because theprevious action for the cancellation of a mortgage bond on the groundthat the debt had been paid could hardly be regarded as an action for abreach of contract.
I have not been able to ascertain how section 817 came to be enacted.In such copies of the earlier Ordinances as I have been able to refer tothere was no similar provision and in fact there was no provision at allfor a claim in reconvention.
It will be noted that the bar applied only to actions for breach ofcontract, and that the claim in reconvention must consist of a cause ofaction in defendant’s favour for a like cause; and thirdly, it must be a
> 13 X. L. R. 339.
* 15 N. L. R. 438.
DE KRETSER J.—Marimuttupillai v. Suppiahpulle.
claim that might have been allowed him at the trial of the action. What isthe significance of words “ for a like cause ”? It is not the case that defendantis required to make a claim in reconvention consisting of any cause of actionin his favour but only for a like cause. Does that mean that his cause ofaction must arise from a breach of contract ? and might it be furtherrestricted to mean a breach of the particular contract on which he isbeing sued ? It is not easy to answer this question but I should indlineto the view that it was intended that once a contract came before theCourts then all questions arising from that particular contract should besettled in the one case ; for I fail to see why plaintiff should be allowedto plead the breach of a single contract and defendant be required to gobeyond that contract and why, if a defendant were required to interposea claim he had on any other contract, he should not also be required tointerpose any kind of claim he had against the plaintiff on any cause ofaction, irrespective, of whether it arose from breach of contract or not.
The section restricts the ordinary right of a litigant to decide for himselfwhether he should make a claim in reconvention or not and shouldtherefore, in my opinion, be given a restrictive interpretation. Theplaintiff’s cause of action is the breach of contract and if all that wasintended was that defendant’s claim should be based on breach of con-tract it would have been sufficient to say “ on a similar cause of action ”.The words used may possibly amount to the same thing but I feel that adistinction was intended. It was intended that the cause of action shouldarise from like facts and the facts of the same contract may be alike,but it is not likely that the facts of any two contracts would be similar.
It is not necessary, however, to deal further with this aspect of thematter, and I pass on to the third requirement, viz :—that the claimmust be one that might have been allowed him at the trial of the action,i.e., not one which by chance might have been allowed but which theCourt had power to allow.
Section 75 (e) of the Code states that a claim in reconvention shall havethe same effect as a plaint in a cross action. Now, a plaint can bepresented only in the Court in which a party defendant resides or thecause of action arises or the contract sought to be enforced was made orwhere the land in respect of which the action is brought is situate. Thelearned Commissioner has found ^hat the present plaintiff’s claim mightproperly be brought in the Badulla Court but could not properly havebeen brought in the Nuwara Eliya Court. That being so, it was one which,if it had been made by way of reconvention, could not have been allowedat the trial of the action in the Nuwara Eliya Court.
Section 75 of the Courts Ordinance (Chapter 6, Vol. 1., of the Legis-lative Enactments) confers jurisdiction on Courts of Requests and re-quires that parties defendant shall be resident within the jurisdiction ofthe Court or the cause of action shall have arisen within such jurisdic-tion. Neither of these conditions would have been complied with had thedefendant made his claim in reconvention in the Nuwara Eliya Court.
Section 817 does not confer jurisdiction; and I do not think thereforethat the present plaintiff acted wrongly in deciding to bring a separateaction in the Court which did have jurisdiction. I do not forget thatsection 818 makes express provision for a case in which the claim in
Cooray v. Fernando.
reconvention exceeds Rs. 300 or in which the amount is ’mcertain. Butthat may be due to the fact that it was contemplated th;' the counter-claim would arise from a breach of the same contract regarding whichthe parties were already before the Court when no question of localjurisdiction could arise, or it may have been due to its bei-g considerednecessary to protect both the plaintiff and the Court from claims whichmight protract the trial of the original claim. There is nothing toprevent a claim in reconvention exceeding Rs. 300 being mai> in a Courtof Requests and, if made, it must be tried, but the Court cf‘ give reliefonly up to the extent of its monetary jurisdiction : vide section 79 of theCourts Ordinance, which corresponds with similar provisions in the Englishlaw with regard to Courts of inferior jurisdiction.
Section 818 probably furnishes another reason for the opinion thatsection 817 contemplates counter-claim on the same contract for section76 of the Courts Ordinance gives the Court of Requests jurisdiction todecide certain claims irrespective of value. It would be odd if plaintiffcould claim beyond Rs. 300 but defendant could not claim on a similarcause of action beyond Rs. 300 when section 76 gives him such a right.
For the reasons given by me I allow the appeal and set aside the decreeentered in the Court below and enter judgment for the plaintiff as prayedfor with costs in both Courts.
Being of opinion that this matter required closer investigation, Idecided to postpone delivery of this judgment and to call in the assistanceof the Legal Draftsman, while I made further inquiry myself. Throughhis courtesy I have had placed before me by Mr. Wendt, his Assistant,the draft of the proposed Civil Procedure Code prepared by Chief JusticeWood Renton and District Judge Maartensz, published in the GovernmentGazette of April 27, 1917. They redraft section 817 to read as follows : —
“ Where the defendant in an action in the Court of Requests for breachof a contract neglects to set up a claim in reconvention arising out of thesame contract, which might have been allowed to him at the trial of theaction, he and every person deriving title through or from him shall be.precluded from maintaining an action to recover the same at any timethereafter.”
The marginal note is as follows : —
Note.—“ The object of sub-section (1) of this section ” (quoted above)“ is to put in a more intelligent form what is understood to be the intentionof the old section, viz., section 817….”
MARIMUTTUPILLAI v. SUPPIAHPULLE