( 861 )
UKKU MENIKA et al v. LAPE.
C. B. Matale, 4,131.
Civil Procedure Code, s. 406—Dismissal of action after trial—Permissionto bring fresh action—Validity of such order—Fiscal’s transfer in favourof a dead person—Validity of such deed.
Where a Judge without calling on the defence dismissed an action reivindicatio on the ground that the plaintiff had failed to make out histitle but, about a week after such dismissal, gave the plaintiff liberty tore-institute the action—
Reid, that the order giving the plaintiff liberty to re-institute theaction was inoperative, as being made without jurisdiction, and that thesaid order did not prevent the defendant from successfully raising theplea of res judicata, if sued again on the same cause of action.
Held also, that a Fiscal’s transfer in favour of a dead person wasinvalid and inoperative.
HE facts fully appear in the judgment of Grenier, A.J. Thecase was argued in appeal on 14th May, 1903.
H. A. Jayawardene, for defendant, appellant.
Tan Langenberg, for plaintiffs, respondents.
Cut. adv. vult.
May 14 and
June 6, 1903. Gbeniek, A.J.—
This was an action by the plaintiff for a declaration of title toan undivided three-fourths of the land described in the plaint.One Punohirala Korala, on a writ against the defendant in caseNo. 10,601, issued from the Village Tribunal of Matale North,purchased the whole land. He, it was alleged, by deed dated the30th July, 1894, gifted an undivided half to the plaintiffs, whoclaim another one-fourth as his children by a second marriage.
The defendant answered denying that Punchirala Korala becamethe purchaser under writ No. 10,601, and amongst other matterspleaded that the subject-matter of this action was inquired intoand determined in C. B., Matale, No. 3,603, and plaintiff’s actionwas dismissed with costs. In other words, the defendant assertedthat the judgment and decree in that case operated as res judicataand estopped the plaintiffs from maintaining the present action.
Now, on looking into the previous case No. 3,603, I find thatthe action, was by the same plaintiffs as in the present one againstthe same defendant, but with the addition of her husband. Thepurchase at the Fiscal’s sale was pleaded as the source of PunchiralaKorala’s title, and the plaintiffs claimed a half of thfe land by giftfrom him. At the date of the institution of the first action Punchi-rala Korala was alive, because in the present action the plaintiffsclaim one-fourth by inheritance from him, averring that he diedabout two years ago. It is not pretended that Punchirala Koralahad any other title but the one he was said to have got by purchaseat the Fiscal’s sale, and the cause of -action seems to be identicalin both cases.
The first action was dismissed by the Commissioner in thefollowing terms: —
“ I will not call on the defendant to adduce evidence. In the.absence of any documentary evidence to prove the Fiscal’s sale,I am not' prepared to attach any importance to the evidence adducedby the plaintiffs.
“ Plaintiffs’ case dismissed with costs.”
There was no appeal from the judgment. It was asserted in thepetition of appeal that a week after this judgment was pronouncedthe Commissioner added a footnote to his judgment which runsas follows:—“ If the plaintiff obtain a Fiscal's transfer, he can re-institute a fresh case on payment of all costs in this case.” I havelooked into the case No. 3,603, and I find that the assertion iscorrect.
The question then arises, whether the Commissioner had thepower to make ibe order in question, and in the circumstances in
( 363 )
which he made it. Now section 406 of the Civil Procedure Code 1903.enacts as follows:—“If, at anytime after the institution of the May 14 andaction, the Court is satisfied on the application of the plaintiff *'tma s‘
(а)that the action must fail by reason of some formal defect, or Grenier
(б)that there are sufficient grounds for pernfitting him to with- A-J-draw from the action or to abandon part of his claim with liberty
to bring a fresh action for the subject-matter of the aotion, or inrespect of the part so abandoned, the Court may grant suoh per-mission on such terms as to costs or otherwise as it thinks fit.”
The words are very clear, and it goes without saying that thesection cannot be made applicable to the present case, where thecase went to trial and the plaintiff’s aotion was dismissed. Therewas no application by the plaintiffs to withdraw the aotion withliberty to re-institute a fresh action, but, on the contrary, theplaintiffs elected to go to trial on the merits, and the aotion was aftersuch trial dismissed. The Commissioner had no power there-after to make any order allowing the plaintiff liberty to re-instituteanother action. The plaintiff’s remedy lay by way of appeal, whichthey did not avail themselves of. I hold, therefore, that the defen-. dant’s plea of res judicata should have been upheld.
The learned counsel for appellant pointed out to me that theCommissioner had misapprehended the object with which thedefendant’s Proctor referred to the judgment of Mr. Justice Lawriein D. C. Kand^, 8,298. I understand that the judgment thereinwas to the effect that a transfer in favour of a dead man wasinvalid and inoperative, and that the Fiscal’s transfer in the presentcase having in point of time been executed after Punohirala Korala’sdeath, that judgment applied. On this ground, too, the plaintiff’saction must fail.
The Commissioner appears to have been under another mis-apprehension as regards the order of this Court on the first appeal.
This Court decided nothing by its order. It only dismissed theappeal on the ground that the order was not an appealable one.
The order, if it- may be described as one, consisted simply of anexpression of opinion on the part of the Commissioner in regardto one of the issues, and the appeal was therefore dismissed.
For the reasons I have given, the judgment of the Court belowmust be set aside, and the plaintiff’s action dismissed with costs.
UKKU MENIKA et al v. LAPE