WEERASOORIYA J.—Nagalingam v. Ledchumipillai
1953Present: Pulle J. and Weerasooriya J.
NAGALINGAM, Appellant, and LEDCHUMIPILLAI, RespondentS. C. 77-—D. C. (Inty.) Anuradhapura, 3,313
Appeal—Dismissal far want of appearance—Effect of such dismissal—Res judicata—Extension of principle to points decided previously in same suit—Arbitration—Objections to validity of award—Same objection cannot be raised twice—CivilProcedure Code, ss. 687, 692 (1).
When an appeal is dismissed, there being no appearance for the appellant, thedismissal of the appeal must be regarded as involving a rejection of all the argu-ments -which might have been raised at the hearing of the appeal. The absentparty must bear the consequence of his own laches.
A decision in a civil suit or other proceeding in regard to any point operatesas a bar to a fresh decision on that point in all subsequent stages of that suit or•proceeding. In arbitration proceedings, therefore, the requirement in section692 (1) of the Civil Procedure Code that the parties should be notified of the dayon which judgment will be given does not entitle a party to raise on the dayfixed for judgment an objection to an award which he had previously raisedand was the subject of an adjudication whieh is binding on him.
PPEAL from a judgment of the District Court, Anuradhapura.
G. E. S. Perera, Q.C., with C. Shanmuganayagam, for the defendantappellant.
S. J. Kadirgamar, with S. T. K. Mahadeva, for the plaintiff respondent.
Cur. adv. vuti.
November 30, 1953. Weerasooriya J.—
Daring the pendency of this action, which was brought by the plaintiff-respondent against the defendant-appellant, the matters in disputewere by consent of the parties referred to arbitration, purportedly under
WEERASOORXYA J.—Nagalingam v. Ledchumipillai
the provisions of sections 676—678 of the Civil Procedure Code. The awardof the arbitrators holding that the plaintiff-respondent was entitled to asum representing the major portion of the amount claimed by her in theplaint was in due course filed in Court and notice thereof was given to thedefendant-appellant on the 18th April, 1952 ; and on the 8th May, 1952,he filed an application containing certain objections to the award andpraying inter' alia that the award be set aside and that the case be fixedfor trial before the Court. The inquiry into this application was held onthe 12th June, 1952, when Counsel for the plaintiff-respondent took theobjection that the application to set aside the award had not been madewithin the time specified in s. 687 of the Civil Procedure Code. Counselfor the defendant appellant, while not contending that the applicationhad been made within time, raised an entirely new objection on the groundthat the award was a nullity in that “ the reference to arbitration is illegal ”and he also moved to amend the objections already filed by adding thisnew ground. Mr. Perera, who appeared for the defendant-appellant atthe hearing of the present appeal, amplified this new ground of objectionby stating that the application to Court for an order of reference to arbi-tration was not in writing, as required by s. 676 (2) of the Civil ProcedureCode, and that the consequent arbitration proceedings as well as theaward were void and of no effect in law, and he submitted further that anobjection to an award on the ground that it was void need not be takenwithin the time specified in s. 687 of the Civil Procedure Code.
The learned District Judge refused to entertain the new ground ofobjection or to grant leave to amend the objections by the addition of thatground, and he dismissed the defendant-appellant’s application to sfetaside the award, holding that the application had not been made withintime.
The legal'position that resulted from the dismissal of this application wasthat there was before Court an award according to which the Court wasrequired under s. 692 (1) of the Civil Procedure Code to give judgmentafter notice to the parties. If the defendant-appellant wished to be re-lieved from the legal consequences of the award the only remedy he had,it seems to me, was to appeal against the learned District Judge’s order.That the defendant appellant’s legal advisers correctly apprehended thelegal position is seen from the fact that an appeal was- duly filed againstthe order of the learned District Judge. Para 9 (b) of the grounds in thepetition of appeal specifically sets out that the application for referenceto arbitration was not in writing as required by s. 676 of the Civil Pro-cedure Code, that the reference was therefore illegal and that the awardwas “ illegal and void and therefore should be set aside
This appeal duly came up for hearing before this' Court and was dis-missed with costs, there being no appearance for the defendant-appellant.The defendant-appellant cannot, however, be allowed *to take advantageof his absence on that occasion in order to re-open any question whichmight have been raised and determined on that appeal. To adopt (withnecessary modifications) the observations of the Judicial Committee of the
WEERASOORIYA J.—Nagaliagatn v. Ledchumipillai
Privy Council in tlxe case of Juggodumba Dossee v. Tarakaut Banner jee 1in considering the effect of a decision in appeal before the Committeewhich was heard ex-parte (the respondents not being represented at theappeal) the dismissal of the plaintiff-appellant’s appeal must stand as ifall the arguments which he, if present, could have raised upon the casehad been addressed to Court. The absent party musf bear theconsequence of his own laches.1
The dismissal of the defendant-appellant’s appeal must, therefore, beregarded as involving a rejection of his contention that the award is void,either on the argument set out in paragraph 9 (6) of his petition in thefirst appeal or on any other argument which might have been raised at thehearing of that appeal.
One would have thought that with the dismissal of that appeal nofurther impediment would be placed in the way of the plaintiff-respondentobtaining the benefit of the award in her favour. But the subsequentevents proved that the defendant-appellant had not yet exhausted hisresourcefulness. The receipt by him of a notice from Court of the dateon which judgment was to be entered according to the award served as afresh incentive for the making of another application Oo have the awarddeclared null and void and that the trial be proceeded with on theissues that had been framed before the reference to arbitration was made.Two grounds were raised in support of this application, the second of whichwas, however, not pressed by his counsel at the hearing of the presentappeal. The first ground was the same as set out in para 9 (b) of the petitionin the appeal which was dismissed. This application was refused by thelearned District Judge and the present appeal has been taken againstthat order.
It is clear that what the defendant-appellant seeks to establish in thepresent appeal is the same contention which he sought to establish at thehearing of his original application, namely, that there is no valid awardbefore the Court. Hukum Chand in his treatise on Res Judicata 1 2 refersto a principle analagous to that of res judicata under which a decision in acivil suit or other proceeding in regard to any point is held to be a bar to afresh decision on that point in all subsequent stages of that suit or pro-ceeding. In the case of Bam Kirpal Shukul v. Bup Kuari 3, the questionarose whether a previous decision of a Judge in the course of executionproceedings that the decree sought to be executed, according to its trueconstruction, awarded future mesne profits (no appeal having been takenagainst that decision by the judgment debtor) could in a later stage of thesame proceedings be set aside at the instance of the judgment debtor andfuture mesne profits disallowed. The Judge before whom this questionwas raised considered himself bound by the previous decision and hedisallowed the judgment-debtor’s objection in respect of mesne profits.The High Court, however, reversed this order and held that the execution
1(.1880) VI Calcutta Law Reports 121 at 127.
2Hukum Chand. on Res Judicata (1894 Ed.) p. 759.
3(1883-4) I. L. R. 11 Indian Appeals 37.
WEER.ASOOB.rYA J.—Nagalingam v. Ledchumipillai
of the decree for mesne profits should be disallowed. On an appealfiled against the order of the High Court,- the Judicial Committee of thePrivy Council held that the High Court had erred in deciding that thedecree did noi award mesne profits because the Judge who had construedthe terms of the decree as awarding mesne profits had jurisdiction to decidethat question and his decision, whether right or wrong, not having beenappealed from, was final and binding on the parties and those claimingunder them. “ If ” stated Their [Lordships “ the subordinate Judges andthe Judge were bound by the order of Mr. Probyn in proceedings betweenthe same parties on the same judgment, the High Court were bound by it,and so also are Their Lordships in adjudicating between the same parties.”
In the case of Bani Ba/m et al. v. Narihu Mai1 it was held by the JudicialCommittee of the Privy Council that where a Judge had decided in thecourse of execution proceedings that a decree according to its true construc-tion provided for payment of interest dining a certain period, and suchdecision had not been appealed from, it was not open to the High Courtat a later stage of the execution proceedings to set aside that order anddisallow interest for part of that period..
In my opinion the order of the learned District Judge refusing the firstapplication made by the defendant-appellant that the award be set aside,and the dismissal of the appeal filed against that order, preclude the defen-dant-appellant from again raising the question of the validity of theaward. Mr. Perera for the defendant-appellant referred us to the caseof Menichamy v. Muniweera et al.1 2 as authority for his submission that it isopen to his client, in the present appeal, to attack the award on theground advanced by him notwithstanding that, as conceded by him, thesame ground formed the basis of the previous appeal. In that case thewidow of a deceased defendant in a partition action made an application tothis Court by way of restitutio in integrum, to have set aside the interlocu-tory decree which had been entered after the death of the deceaseddefendant and before the substitution of his widow and children asparties in the case. Notwithstanding that an appeal had been filed bysome of the parties against the interlocutory decree and the interlocutorydecree had been affirmed in appeal, this Court granted the relief claimedand set aside the interlocutory decree and remitted the case to the DistrictCourt for steps to be taken to have the heirs of the deceased defendantsubstituted as parties in his place and for an adjudication on their titleto the land sought to be partitioned. It is to be noted, however, that inthat case the heirs of the deceased defendant were not bound by the inter-locutory decree, and no final decree had been entered which would havebeen conclusive against all persons including the heirs of the deceaseddefendant. I do not think that the defendant-appellant is helped verymuch by the decision in that case..
The appeal is accordingly dismissed with costs. The case is remitted tothe lower Court so that judgment may be pronounced according to the
1(1883—4) I. L. R. 11 Indian Appeals 181.
2(1950) 52 N. L. R. 409.
Tharnbipillo/i v. Jk£animunai South and Eruiril Co-operative
Agricultural Production, and Sales Society, Ltd.
award on a day of which, notice has been given to the parties in terms ofs. 692 (1) of the Civil Procedure Code. While I do not wibh to he under-stood as expressing the view that in no case would it be open to a partyto raise on the day fixed for the giving of judgment an objection to anaward which had not previously been taken within the time specified ins. 687 of the Civil Procedure Code, I would observe that the requirement ins. 692 (1) that the parties should be notified of the day on whieh judgmentwill be given is in accordance with the general rule that judgment shouldbe pronounced in the presence of the parties or their Proctors, or on a dayof which they have been given notice—vide s. 184 (1) of the Civil ProcedureCode ; and that requirement does not in any way imply that a party isfree to raise on the day fixed for judgment an objection to an awardwhich he had previously raised and was the subject of an adjudicationwhich is binding on him.
Ptjxzle J.—I agree.
NAGALINGAM, Appellant, and LEDCHUMIPILLAI, Respondent