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PONNAIAH v. PAYHAMY et al.
D. C., Kandy, 15,765.
Permission to bring fresh action—Institution of action before permission—Omission toplead oneofseveraltitles—Res judicata—Civil Pro•
cedure Code, s. 33.
A permissiongranted bytheAppealCourt to a' party to a suit to
bring a freshaction doesnotrendervalid an action brought before
such permission was granted.
Where a plaintiff brings an action for land, he must, under section83 of the Civil Code, set out every title by which he claims to beentitled to it at the time of action. Where he omits to plead anytitle on which he might have relied in one action, he is debarredfrom setting up such title in a subsequent action.
^ PPEAL from a judgment of the District Judge of Kandy.
The plaintiff sued the defendants to vindicate a land calledTanenwatta. The defendants claimed the land, and also pleadedthe decree in action No. 14,893 between the same parties as resjudicata and a bar to the present action. In that action plaintiffclaimed the land by right of inheritance, and when it was dismissedthe plaintiff appealed, but before the appeal was decided broughtthe present action claiming the land on a transfer. In the appealin the former action the dismissal was affirmed, but permissionwas granted to plaintiff to bring a fresh action, if so advised. It wascontended for the defendants that, because the second action wasbrought before leave to bring a fresh action was given by theAppeal Court,' the second action was bad. The District Judge heldthat the former action was not a bar, as the Appeal Court had^givenpermission to bring a fresh action, though the permission wasgiven after the institution of this case. Judgment havingbeen entered for the plaintiff, the defendants appealed.
H. A. Jayewardene, for defendants-appellants.
Bawa, for the plaintiff ^respondent.
17th October, 1905. Layard, C.J.—
The plaintiff in this case sought to be declared entitled to a certainland mentioned in the plaint. His title is founded on a purchase byone Sedu Tewar from a person named David Perera. Sedu Tewarafter his purbhase conveyed the land to plaintiff and one Minachchi.
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1906. On Minachchi’s. death the plaintiff inherited her share, and heOctober 17. alleges that the defendants are in unlawful possession of this land.
It is unnecessary here for me to set out the defendapt’s claim tothe land. The defendant however pleads that the plaintiff couldnot maintain this action because he had previously brought an actionin the District Court of Kandy against them in respect of this'veryland, the subject of this suit. In that action the plaintiff claimed tohave inherited the land from ,Sedu Tewar. He admits that at thetime of bringing the action he was aware of the conveyance to himselfand Minachchi, but that he could not find the deed, and so in theoriginal action he only claimed by inheritance. The defendantscontend that the decision in 14,898 dismissing plaintiff’s action isres judicata.
At the date of the institution of the present action the decree dis-missing the plaintiff’s action in the former case was in force. Therewas an appeal, however, taken from that decision and this court inaffirming the judgment in that action gave the plaintiff permissionto bring a fresh action if so advised. The appellant' contends thatthe judgment in 14,893 is res judicata, and that this court had nopower to give plaintiff permission to bring a fresh actionbecause the plaintiff had not withdrawn the previous action. It isunnecessary for the purpose of my decision to decide here whetherthe permission granted by this court in its judgment in the formercase was one that this court had no power to grant. I would onlystate that if the plaintiff does bring a fresh action in accordancewith the permission there granted he must do so at his own risk,leaving it open to the court in which the new action is brought todecide as to whether the order of this court is one which entitles theplaintiff to bring a fresh action. If the decision in the former caseis res judicata, the question still remains to be decided as to whetherthis action having been brought- before the permission was givenby this court to the plaintiff to bring a fresh action, he is barred bythe former decision. I think that this action having been institu-ted prior to the judgment of this court in appeal, whatever may bethe effect of permission given in that judgment, it cannot accrue tothe benefit of the plaintiff who brought this action prior to such per-mission having been given him. Now, the subject in dispute inboth these actions was the right of the defendants to retain posses-sion of the land in dispute as against the superior title of the plaintiff.Section 33 of our Civil Procedure Code provides that “ every regularaction shall, as far as practicable, be so framed as to afford groundfor a final decision upon the subjects in dispute, and so to preventfurther litigation concerning them.” The original ^action ought
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then to have been so framed as to set out every title that the plaintiffmight have claimed to the land in dispute. It cannot be said in thiscase that the plaintiff was unaware of his title by conveyance,because it is admitted that he was aware of it at the time the originalaction was brought. Now, reading section 33 with the explanationof section 207 it would appear that our Civil Procedure Code con-templated that ever/ right to property should be set up and put inissue between the parties to an action in every case in which suchright was based on the same cause of action, as it was in caseNo. 1,493, and that when a final decree in action in which the plain-tiff has omitted to set out some right which he could have set out inhis original action has been passed, such final decree is to be resadjudicata and is not to be made the subject of a litigation in a subse-quent suit between the same parties. Taking this view of the law Iwould allow the appeal and dismiss the plaintiff’s action with costsin both courts.
Wendt, -J.—I agree with all that has fallen from my Lord. Theprincipal objection to the plaintiff claiming the benefit of the leaveto sue again- given by this court on the former appeal is, that thepresent action was not brought in pursuance of that leave but hadalready been instituted by the plaintiff at his own risk after thedismissal of his first action in the District Court. If we are to con-sider^ whether irrespective of that leave the plaintiff could maintainthe present suit, I should say that he cannot.. The title whichin the present suit he sets up to the land is one which admittedly hehad, and knew he had, when he brought the former action. Yet heelected to say nothing about it, but to base his claim on a differenttitle. His present title is clearly a “ right of property ” which hecould have claimed, if not pari passu, at all events in the alternativein the former action. It not having been so claimed, the final decreein that action makes the matter a res judicata which cannot belitigated again between the same parties.
October 1.7.Layabd, CJ
PONNAIAH v.PAYHAMY et al