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Present: Mr. Justice Wendt and Mr. Justice Wood Benton.
PALANIAPPA CHETTY v. GOMES et al.
D. C., Kalutara, 3,697.
Bos judicata—Dismissal of action for failure to give security for costs—
Bar to fresh action—Civil Procedure Code, ss. 207, 417, and 418.
Where a plaintiff is ordered, under section 417 of the CivilProcedure Code, to give security for costs, on the ground of the■non-residence of the defendant within the jurisdiction of the Court,and he fails to do so, and his action is dismissed under section 418.the order of dismissal operates as res judicata, and bars a freshaction on the same cause of action.
Hariram Mohanji v. Lalbai1 distinguished.
PPEAL by the first defendant from a judgment of the DistrictJudge of Kalutara (P. E. Pieris, Esq.). The facts and
arguments sufficiently appear in the judgments.
Bawa, for the first defendant, appellant.
H. Jayewardene (with him C. de Jong), for the plaintiff,respondent.
Cur. adv. vult.
September 14, 1908. Wendt J.—
This question in this case is whether the dismissal under section418 of the Civil Procedure Code of a former action, on the failureof plaintiff to find the security ordered under section 417, is a barto a second action for the same cause. The learned District Judgehas held that it is not. The facts are as follows: —
Both actions are by the endorsee against the maker and endorserof the same promissory note. In the former action, which wa<brought in the District Court of Colombo, the first defendant, whowas resident in Kalutara, before answering obtained an orderdirecting the plaintiff to deposit Bs. 250 as security for his costs onor before June 26, 1907. The period was subsequently extendedto July 10, but the deposit not having been made the action wason that day dismissed with costs. No application was made fjrleave. to withdraw from the action, nor did plaintiff apply for auorder to set the dismissal aside. On January 29, 1908, the presentaction was commenced. In his answer, besides pleas on themerits, the first defendant pleaded that the dismissal of the Colomboaction was a bar to the present action, and this was tried as apreliminary issue. The District Judge held, following HariramMohanji v. Lalbai,1 that the dismissal was not a bar, and first-defendant has appealed.
» 11902) I. L. B. 26 Bom. 637.
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Our law as to res judicata is to be found in section 207 of. the _‘
Civil Procedure Code, which enacts that “ all decrees passed by the ‘sePtemoeTCourt shall, subject to appeal, when an appeal is allowed, be final Wundt J.between the parties; and no plaintiff shall hereafter be non-suited.”
To this section is appended the following “ explanation ” :—
" Every right of property, or to money, or to damages, or to reliefof any kind which can be claimed, set up, or put in issue betweenthe parties to an action upon the cause of action for which theaction is brought, whether it be actually so claimed, set up, or putin issue or not in the action, becomes, on the passing of the finaldecree in the action, a res adjudicate, which cannot afterwards bemade the subject of action for the same cause between the sameparties.”
" Decree ” is defined in section 5 on “ the formal expression ofan adjudication upon any right claimed or defence set up in a CivilCourt, when such adjudication, so far as regards the Court expressingit, decides the action or appeal.” The dismissal of the Colombocase involved the adjudication that plaintiff could not maintain hisaction. It was therefore a decree, and a final decree, because solong as it remained in force nothing more could be done in theaction. When it was passed, the right to recover the promissorynote debt, which plaintiff had set up in that action, became a tebjudicata, and could not be litigated in a new action between thesame parties.
The law enacted by the Indian Civil Procedure Code is not thesame. It is true that the definition of decree (section 2) and theprocedure in relation to security for costs (sections 380, 381) aresubstantially the same, but the provisions as to res judicataembodied in section 13 are essentially different from our section207. Section 13 enacts that no Court shall try any suit or issue inwhich the matter directly and substantially in issue (first) has beendirectly and substautially in issue in a former suit, and (secondly)has been heard and finally decided in that suit. In short, the Court-must have entered into the " merits ” (to use a convenient term)and determined the rights of the parties thereupon. Hence thecircumstance that in the Bombay case above cited no question ofres judicata was raised before Starling J. Section 13 was notreferred to at all. (To, judge from the report, plaintiff's counsel didnot contest the position that, if the cause of action and the partieswere the same, the dismissal was a bar; he only submitted thatthe parties were not the same.) There being, then, no res judicata,the learned Judge had to decide whether there was any prohibitionof a second action, and he held that there was not, and that hewas not prepared to introduce one himself. See the older case ofRungrav Ravji v. Sidhi Mohamed It is true that in section 403,
11. L. R. 6 Bom. 482.
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. ■ ■. which allows a plaintiff whose action has abated or been dismissed
' to apply for an order setting aside the order of abatement or dis-WbndtJ. missal, an express prohibition is inserted against bringing a freshaction. But this is not on all fours with section 418, where plaintiffhas the additional privilege of moving tc withdraw from the action.It may well be that the Legislature considered the plaintiff’sinterests sufficiently protected when he had been given thatprivilege and also the right, on sufficient cause shown, to have thedecree of dismissal set aside. (Compare also section 84 of our Code,where our Legislature has omitted the prohibition of section 108 ofthe Indian Code against the bringing of a second action.)
I would set aside the order appealed ^gainst, and, deciding thepreliminary issue against the plaintiff, dismiss his action with costsin both Courts.
Wood Benton J.—
The question in this case is whether a plaintiff, whose action hasbeen dismissed under section 418 of the Civil Procedure Code forfailure to give security for costs, can bring a fresh suit against thesame defendant on the same cause of action. The learned DistrictJudge has answered this question in the affirmative on the authorityof the decision of Starling J. in Hariram Mohanji v. Lalbai >, inwhich it was held that the dismissal of a suit under section 881 ofthe Indian Code of Civil Procedure, which corresponds to our section418, does not bar a fresh suit for the same cause of action. Iventure .to think that this decision is not applicable to the presentcase. Starling J. says in effect: “ Section 381 of the Indian Codedoes not, like .section 103 (dismissal for want of appearance ofplaintiff), create a statutory bar to the institution of a fresh action,and it would be wrong for me to introduce such a prohibition.” Butit does not say that the dismissal of a suit under section 381 wouldnot have precluded fresh proceedings if the case had come undersection 18 of the Indian Code of Civil Procedure, which containsthe Indian statutory law of res judicata (of. on this point the decisionof the Judicial Committee delivered by Lord Watson in ChandkourV. Partab Sinyh The question, therefore, that we have to decideis whether the dismissal of an action under section 418 of our Codeoomes within the range of the law of res judicata as it exists inCeylon. I think that it does. Judgment of dismissal is a " decree,”inasmuch as it finally disposes of the suit (i.e., of the plaintiff’sright to maintain the action) so long as it remains on the record(Williams v. Brown ■1). Being a “ decree ” it operates as res judicatain regard to that right under section 207, irrespective of the questionwhich arises under the corresponding Indian section (section 13)whether the matter in issue between the parties in. the second suit
» (1902) I. L. R. 26. Bom. 637.* (1888) I. L. R. 16 Col. 101.
(1886) 1. L. R. 8 All. 109 (Full Court).
has been heard and finally decided in the first. I do not think that ISOS.in the case of 111, C. E., Galle, No. 4,564 to which Mr. Jayewardene September J4.referred us, Sir Joseph Hutchinson C.J- could have meant to hold Woodthat for no purpose is there “ any substantial difference ” between Renton J.section 13 of the Indian and section 207 of the Ceylon Code of CivilProcedure.
I would allow the appeal, and dismiss the respondent's actionwith all costs here and below.
PALANIAPPA CHETTY v. GOMES et al