( 226 )
and fifth defendants. to bear their own costs. The first and seconddefendant's appeal against the judgment was dismissed with costs.
In their cross-appeal the third and fifth defendants urged that as-they, with the plaintiff, had succeeded on the main issue, they bedeclared entitled to the shares claimed by them. This was opposedon behalf of the first and second defendants on the ground that ,,no such adjudication can be made in the present case as theseparties are co-defendants, and that the decision cannot operate as-res judicata between them.
J. Samarawickreme, for first and second defendants, appellants.
Driebergt K.C'. (with him Croos Da Brera), for plaintiff, respond-ents.
Soertsz, for third and fifth defendants, respondents.
September 18, 1924. JayewXrdexe A.J.v—
In this case there is an appeal and a cross-appeal. The appealis between the first and second defendants and the plaintiff andthird and fifth defendants, and the cross appeal is between thethird and fifth defendants and the first and second defendants.
The plaintiff sued the first and second defendants to be declaredentitled to J of 5/9 of the land depicted in the plan filed in the caserwhich he said was a divided portion of the land called Nugagaha-mullahenyaya.
The first and second defendants called it Siyambalagahawatta.The third, fourth, and fifth defendants were Joined as co-ownersof the plaintiff. All the parties claimed title from the same source—that is, from the fourth defendant. The tftird and fifth defendantsfiled answers supporting the plaintiff's contention and claiming-certain shares. On the day of trial the learned District Judge-framed the issues suggested by the plaintiff’s proctor, and did notaccept the issues suggested for the third and fifth defendants.The main issue which was common to the plaintiff and the thirdand fifth defendants was the second one framed, which ran as-follows:—“ Is the land described in plan No. 656 dated July 18, 1922,identical with the land called and known as Nugagahamullahenyayadescribed in the plaint? ” After a long trial the learned DistrictJudge in a well-considered judgment held that the first and seconddefendants were attempting to take advantage of a mistake inthe deeds under which the .plaintiff claimed, and that the landjdaimed by the plaintiff as Nugagahamullahenyaya was identicalwith the land sold to the first and second defendants by the fourthdefendant under .the name Siyambalagahawatta.
He dismissed the plaintiff's claim with costs, but directed thethird and fifth defendants to bear their own costs. The first andseconddefendants appeal against this judgment, but, after listening
( 227 )
to all that appellant s counsel had to urge, it seemed impossibleto say that the learned District Judge was wrong. On the otherhand, the analysis of the boundaries given in the numerous deedsmade by my Lord the Chief Justice demonstrated conclusivelythat the conclusion arrived at by the District Judge was the only•one possible.
The appeal of the first and second defendants must accordinglybe dismissed, with costs, in favour of all the respondents.
But the cross-appeal .of the third and fifth defendants raises apoint of some importance. As X said the third and fifth defendantsfilej answers and supported the plaintiff’s case. The third and thefifth defendants also claimed to be declared entitled to 71/216 and23/72 shares of the land, respectively, and alleged that the first andsecond defendants were in forcible possession" of their shares. Theyalso claimed damages. The issues suggested for the third defendant,which, as I said, the Court did not frame, raised the question ofwrongful possession by the first and second defendants and damages.
At the trial they were represented by their .proctors who tookpart in the trial, and read certain documents in evidence.
At one stage of the proceedings the third defendant's proctormoved that the third defendant be made a co-plaintiff, but thiswas objected to and refused. In their cross-objection they urgethat they, with the plaintiff, have succeeded on the main issueand have established their title to the shares claimed by them.They ask that the decree be amended, and that they be declaredentitled to the shares claimed and to damages. This is objected toby counsel for the first and second defendants', who urges that thethird and fifth defendants were merely formal parties, that noadjudication can be made in the present* action as these partiesare co-defendants, and that a decision between the real andnecessary parties can never operate as res judicata between co-defendants.
Therefore, he contends that the decision of the Court on thesecond issue that the land in question is the land called Nugagaha-mullaheUyaya, according. to the plaintiff and* the third and fifthdefendants’ title, would be res judicata between the plaintiff andthe first and second defendants, it could not have that effect as- between the third and fifth defendants and the first and seconddefendants. In support of his contention he relies on a passagefrom the judgment of my -Lord in Mariammai v. Pethrupillai,1where the Chief Justice said that * 'nothing is res judicata exceptbetween persons who were at issue on the occasion when the thingwas adjudged or persons claiming through them."
But it is argued for the third and fifth defendants that the decisionof the first issue is res judicata even between co-defendants, andthat their rights ought to be settled in this litigation.
1 (1918) 21 A L. B, 200.
Javbwar-DBNE A.J.
Senaratnn v.Perera
Senaratna v,Ptrera
(228 )
It becomes necessary to test the soundless of the contention-that a decision can never be res judicata between co-defendants.
In my opinion, formed after a careful examination of the-authorities on the subject, the principle that a decision is not-res judicata between co-defendants is subject to two exceptions:
When a plaintiff cannot obtain the relief he claims without
an adjudication between the defendants, and such anadjudication is made, the adjudication so made is resjudicata not only between the plaintiff and the defendants,but also between the defendants.
When adverse claims are set up by the defendants to an
action, the Court may adjudicate upon the claims ofsuch defendants among themselves, and such adjudicationwill be res judicata between the adversary defendantsas well as between the plaintiff and the defendants.
Provided that in either case the ^eal rights and obligations ofthe defendants inter se have been defined in the judgment.
The first exception is based on a dictum ,of Wigram V.C. inCottingham v. Earl of Shrewsbury1:—
" If a plaintiff, cannot get at his right without trying and deciding-a case between co-defendants, the Court will try anddecide that case and the co-defendants will be bound.But if the relief given to the plaintiff does not requireor involve a decision of any case between co-defendants,the co-defendants will not be bpund as 'between eachother by any proceeding which may be necessary onlyto the decree the plaintiff obtains/'
It was formulated in India by Sir Raymond West in Rama-chandra Narayan v. Narayan Makadev ,2 and is now accepted aslaying down a sound principle by all the High Courts in IndiaCaspersz on Estoppel and Res judicata, Part II., p. 1S6 (3rd ed.)>
The second exception arises from the ordinary rule of res judicatathat where a matter in a controversy or a point in issue betweentwo parties has been heard and decided, such decision is res judicata,and cannot be controverted in any subsequent litigation/
These principles are of universal application. See Hukm ChandPi es judicata, pp. 170-177.
Instances of the first exception are rare, and almost all the deci-sions in the Indian Reports are cases where the plea of res judicatabetween persons who had been co-dependants has been successfullyresisted. They are likely to occur in mortgage actions. Thus,if a mortgagee brings an action to realize his mortgage against hismortgagor, and impleads a prior mortgagee whose bond he impeachesas being vitiated by fraud and duress, it would be necessary for1 {1843) 3 Hare 627.H Bom• 216.
( 229 )
the plaintiff, if he wishes to obtain a clean mortgage decree, to provehis allegations of fraud and duress. If he succeeds on an issue offraud and duress, and obtains a judgment that the prior mortgageis invalid, such a judgment or decision would be res judicata,not only between the plaintiff and the defendants, but also betweenthe defendants inter as. Instances of the second exception areequally rare, for, Courts are reluctant to enter upon an inquiryinto the disputes arising between the defendants inter se and un-connected with the claim of the plaintiff, when once the plaintiff’srights have been adjudicated upon. But there may be instancesin which the Court has been induced to decide issues arising betweenco-defendants and to define their rights and obligations. In sucha case, the decision would be binding between the defendantsbetween whom the issue had arisen. There is nothing in ourStatute law to prevent a res judicata between co-defendants.
The explanation to section 207 which treats of the finality ofdecrees and res judicata, no doubt enacts that every right arisingbetween the parties to an action upon the cause of action for whichthe action is brought, whether claimed, set up, or put in issue or not,becomes a res judicata on the passing of the final decree, but it hasbeen held that section 207 and sections 34 and 406 of the CivilProcedure Code do not embody the whole law of res judicata inCeylon, that the law of res judicata in Ceylon has its foundationin the civil law which contains the maximum: " Nemo debet bis vexaripro eadem causa,*' and that the general principles of the law ofres judicata obtaining in England, America, and India, which rarenot inconsistent with the provisions of the Civil Procedure Code,are applicable here: Samichi v. Pieris 1 and Velupillai v. Muttu-pillai*
As I pointed out in my judgment in the latter case, a decisionon every point in issue, or matter in controversy in a case, is ares judicata, and the identity of cause of action is immaterial. Thesecond exception can, therefore, be given effect to in Ceylon.
In cases in which, where a co-owner sues another, all the co-ownersare added, there is hardly every any decision on the rights of thedefendants inter se. The co-owners are joined to enable the plaintiffto obtain ^ declaration of title to the undivided share he claimsor proves he is entitled to in the presence of the other co-owners.Such a judgment would be res judicata between the plaintiff andthe defendants, but not between the defendants inter se.
Applying these principles to the present case, it is clear that thedecision that the land in suit is the land Nugagahamullahenyavareferred to in the deeds in favour of the plaintiff, ,and the first andsecond defendants is not res judicata between the first and seconddefendants on the one side and the third and fifth defendantson the other.
jAYtiWAB-dbub A^Tfr
(1913) 14 N. L. R. 257.
*(1923) 2$ N.L.R.261.
( 280 )
Senaratne v.Perem-
The third and fifth defendants had no interest in the 5/27thshare claimed by the plaintiff. No issues were framed betweenthem. They were no doubt concerned in the decision of the issueas to the identity of the land, but that is not sufficient.
The plaintiff could have obtained the relief he claimed withoutany adjudication upon their rights. Their rights have not beenascertained or defined. They do not come within either of theexceptions. Their case is similar to that of the plaintiff in Rajka-marie Debi v. Neityapali Debi,1 in which a plea of res judicata wasunsuccessfully raised. There a co-owner had been added as apro formd defendant, but she had no interest in the undividedshare claimed by the plaintiff. She supported the theory putforward by tbe plaintiff as the basis of his title. The real defendantclaimed a share of the property on a different basis. The litigationterminated in favour of the real defendant. The heirs of the proformd defendant brought the second action, and it was held thatthe decision in the first case was not res judicata between thedefendants. Mookerjee J. saying:—" To put the matter briefly,there was not any conflict of interest between the then defen-ants. Consequently as ruled in the cases of Cottingham v. Earl ofShretvsbury (supra) Ramachandra v. Mahadev (supra), Maginsatn v.Mehdi Hussein,* Qurdee v. Chandripiah,3 and Ghumphelani v.Parmeshar,4 as there was no judgment defining the real rights andobligations of the defendants inter set the principle of res judicata canhave no application/'
In a case like the present, the Court might consider whetherit should not act as Courts of Equity do in England and in America,as our Courts are Courts of Law and Equity. Such a practicewould save the parties much trouble and expense, as was pointedout by Lord Eldon in Chamley v. Lord Dunsany 5:—-* Where acase is made out between defendants, by evidence arising from plead-ings and proof between plaintiffs and defendants, a Court of Equityis entitled to make a decree between the defendants. Further,my' Lords, a Court of Equity is bound to do so. The defendantchargeable has a right to insist that he shall not be liable to bemade a defendant in another suit for the same matter that may thenbe decided between him and his co-defendant. And the co-defendantmay insist that he shall not be obliged to institute another suit."
In the same case Lord Redesdale said: —‘1 It seems strangeto object to a decree because it is between co-defendants, whenit is grounded on evidence between plaintiffs and defendants.It is a jurisdiction long settled and acted upon, and the constantpractice of Courts of Equity." See Oaspersz on Estoppel, Part II.,p. 185 (3rd ed.) .
i {1910) 12 C. L. J. 434 (435).3 H907) 36 Cal. 193.
* (1903) 31 Cal. 95.4 (1907) 5 C. L. J. 653.
(1307) 2 Sch. and Lef. 690.
( 231 )
We must, however, bear in mind the protest of another greatEquity Judge, Jessel M. R., against such a procedure in Kevan v.Crawford1:—"What right has a Court of Justice/' he asked," to investigate a claim by title paramount by one co-defendantagainst another ? I am not aware of any. The answer is, ifyou wish to assert these claims, you must assert them in a properaction.*’
In America the procedure indicated by Lords Redesdale andEldon is adopted in Chancery suits, Bigelow on Estoppel, p. 114.
In the present case, however, the third and fifth defendantsacquiesced in the Court’s refusal to frame the* issue suggestedby them, and their rights have consequently not been ascertainedand defined. There is, therefore, no decision or decree which theycan plead as res judicata against the first and second defendants.
Their appeal also must -be dismissed, with costs.
Bertram C.J.—I agree.
Senaratna v.Perera
Appeal dismissed.