Punchihewa v. Abeywardena
SUPREME COURTAMERASINGHE, J.,
DHEERARATNE, J. ANDWADUGODAPITIYA, J.
S.C. APPEAL NO. 152/97
A. NO. 216/87 (F)
C. COLOMBO NO. 14126/LJUNE 12. 1998
JULY 13. 1998
Vindicatory suit – Abatement of previous action on the same cause without noticeto plaintiff – Plea of res judicata – Sustainability of the plea.
The original plaintiff filed an action in 1980 against the original defendant seekinga declaration of title to the land in dispute, for ejectment and damages. Thedefendant pleaded that the plaintiff could not have maintained the actionin as much as the order of abatement dated 9. 1. 76 entered in case No. 296ED in the Magistrate's Court of Colombo instituted under the Administration ofJustice Law between the same parties and on the same cause of action operatedas res judicata.
The purported order of abatement entered in case No. 296 ED had been madeby Court ex more motu without any notice to the plaintiff or his registered Attorneyon record. As such that order is a nullity and the plea of res judicata fails.
Cases referred to:
Fernando v. Peiris (1897) 3 NLR 77.
Cave & Co. v. Erskine (1902) 6 NLR 338.
Allahakoon v. Wickramasinghe (1908) Appeal Court Reports 8.
Lorensu Appuhamy v. Paaris (1908) 11 NLR 202.
Suppramaniam v. Symons (1915) 18 NLR 229.
Muttucumarasmy v. Sathasivam (1951) 53 NLR 97.
Bank of Ceylon v. Liverpool Marine & General Insurance Co., Ltd. (1962)66 NLR 472.
Nagappan v. Lankabarana Estate Ltd. (1971) 75 NLR 488.
Sri Lanka Law Reports
 1 Sri LR.
APPEAL from the judgment of the Court of Appeal.
Faiz Musthapha PC for appellant.
Bimal Rajapakse with Ms. Damayanthi de Silva for respondent.
Cur. adv. vult.
July 30. 1998.
The original plaintiff filed this action on 22nd January, 1980, againstthe original defendant, seeking a declaration of title for the land calledlot CG in Plan No. 4082 made by H. W. Fernando, Licensed Surveyor,bearing assessment No. 4/40, Polhengoda Road, Colombo, in extent10.02 perches and for damages. If I may give some more particularsof the plaint at this stage, no value of the land was mentioned althougha declaration of title was asked for; the quantum of damages men-tioned was Rs. 38,000; and the action was valued at Rs. 38,000.The original defendant, resisted the action inter alia on the basis thatthe original plaintiff could not have had and maintained the action,inasmuch as the order of abatement entered in case No. 296 EDin the Magistrate's Court of Colombo, between the same parties, andon the same cause of action, operated as res judicata.
The learned District Judge held against the defendant on the pleaof res judicata on the basis that the action filed in the Magistrate'sCourt was a nullity, as the Magistrate's Court had no jurisdiction tohear that case and that "that Court had jurisdiction only if the valueof the land was below Rs. 1,500". The Court of Appeal affirmed thatjudgment for a different reason; it held that in the earlier action''presumably'' no relief had been sought for declaration of title andejectment, but only for damages in a sum of Rs. 300 and thereforethe plea failed. The only matter for determination before us in thisappeal is whether the plea of res judicata should have been upheld. I
I shall now turn to the previous case No. 296 ED. The plaint inthat case dated 28. 2. 75, was filed in the Magistrate's Court of
Punchihewa v. Abeywardena (Dheeraralne, J.)
Colombo on 5th March 1975. At that time the Administration of JusticeLaw (AJL) No. 44 of 1973 was fully in operation, section 52 of thatlaw having come into operation on 15. 11. 73 by virtue of the orderpublished in the Gazette No. 85/7 of 16. 11. 73, and other sectionsof the law having come into operation on 1. 1. 74 by virtue of theorder published in the Gazette No. 94/11 of 28. 12. 73. By section30 of that law, the Magistrate's court was granted exclusive originaljurisdiction to hear and determine all actions, proceedings or mattersin which the debt, damage, demand or claim, or the value of themovable or immovable property or the particular share, right or interestin dispute or the land to be partitioned or sold does not exceed onethousand five hundred rupees. No new civil procedure was introducedby that law. Therefore when the plaint was filed in the case No. 296ED in the Magistrate's court, it had to conform to requisites specifiedin the Civil Procedure Code.
It was in those circumstances that a plaint in the nature of a regularaction (as opposed to summary) was filed. Para 2 of that plaint averredhow the plaintiff became the owner of the property. The schedule tothe plaint described the land in the identical manner in which it wasdescribed in the present action. No value of the land was mentionedlike in the present action too. The prayer to the plaint in para (a)specifically asked for that the plaintiff be declared owner of the land;para (b) for the ejectment of the defendant, his servants and thoseholding under her; and para (c) for damages at the rate of Rs. 100from 5. 12. 74 until the defendant was ejected. Thus it is quite manifestthat the cause of action impleaded in each case is identical.
According to the Journal Entry of that case dated 21. 11. 75,summons had been served on the defendant; her attorney filed a proxyon her behalf and the court fixed 9. 1. 76 as the date to file heranswer. Meanwhlile, the AJL (Amendment) Law No. 25 of 1975 waspassed, the date of operation of which by Gazette No. 129/5 dated29. 12. 75 was fixed as 1. 1. 76. By this law the Civil ProcedureCode was repealed and in terms of section 363 (2) of that law "everyaction instituted in the Magistrate's court shall commence andproceed by way of summary procedure".
SriLanka Law Reports
 1 Sri LR.
The Journal Entry of 9. 1. 76 reads that: "The plaintiffs attorney-at-law was informed that he should take necessary steps in termsof sections 673 and 564 of the AJL 25/74°. Section 673 is a referenceto the necessity for the pending cases to conform to the new procedurelaid down in the AJL; and section 564 is a reference to summaryprocedure. The next Journal Entry in case No. 296 ED is undatedaccording to the certified copy of that filed of record and that states:“Although six months have elapsed after the last order was made,the plaintiff has failed to take necessary steps; therefore I quash thecase”.
In Sinhala, the last part of that entry reads “naduwa ahosi karami".The appropriate Sinhala terminology should have been “nadu kruthiyanathara karami”. Whatever the Sinhala words used in that connectionwere, I shall proceed to determine this case, on the basis that theorder made by the Learned Magistrate in that case, purported to beone of "abatement" and that order was referable ot sections 575 and576 (1) of the AJL (Amendment) Law No. 25 of 1975.
Those sections read as follows :
– If a period exceeding six months elapses after the date
of the last entry of an order or proceeding in the recordwithout the plaintiff taking any step to prosecute the actionwhere any such step is necessary, the court may passan order that the action shall abate.
(1) – Where an action abates or is dismissed no fresh action
shall be brought on the same cause of action.
Sections 575 and 576 (1) of the AJL correspond to sections 402and 403 of the CPC respectively. Thus the consequences of enteringorders of abatement are so serious that courts should make suchorders with extreme circumspection. There is no doubt that Judgesowe a duty to expeditiously dispose of matters pending before them,but, equally they owe a duty not to lightly deprive parties of their rightto have access to courts without first giving them adequate prior noticeof such prospective deprivation. In the instant case the orcter ofabatement appears to have been made by court ex mero motu withoutany notice to the plaintiff or his registered attorney on record.
Punchihewa v. Abeywardena (Dheeraraine, J.)
If I may now turn to some of the reported decisions of the SupremeCourt, it was thought at one time, that the consequences of an orderof abatement are so serious, a court should never excercise the powerto make an order of abatement ex mero motu, but only upon anapplication made by the defendant with due notice to the plaintiff. SeeFernando v. Pe/ns*1’; Cave & Co. v. Erskind® and Allahakoon v.Wickramasinghd®. The correctness of that proposition was howeverdoubted later (obiter) in Lorensu Appuhamy v. Paarisl4). The reasonfor such doubt was the absence of any language in section 402 ofthe CPC itself, expressly or impliedly, imposing any such fetter onthe court. In Suppramaniam v. Symons/® it was held that althoughthe court had the power to made an order of abatement ex meromotu it was desirable that a court, before making such order, shouldnotice the parties, as far as it conveniently can, to give them anopportunity of showing cause against the order. This last decision wascited with approval in the two majority judgments (Jayatileke, CJ. andPulle, J.) in Muttucumarasamy v. Sathasivarri® in the case of Bankof Ceylon v. Liverpool Marine & General Insurance Co., Ltd.m andin the case of Nagappan v. Lankabarana Estates Ltd.®
For the above reasons I hold that the purported order of abatemententered in case No. 296 ED, without notice to the plaintiff, is a nullityand the plea of res judicata fails. In view of the conclusion I havereached that the purported order of abatement is a nullity, I need notconsider the further question whether the original plaintiff or thesubstituted plaintiff should have, in terms of either section 576 (2)of the AJL or section 403 of the CPC, moved the Magistrate's courtwithin reasonable time to get the purported order vacated. The Appealis dismissed with costs of this court fixed at Rs. 5,000. In view ofthe long time taken to conclude these proceedings, I make order thatwrit of ejectment shall not be issued against the substituteddefendant till 31. 10. 98 and the plaintiff will be entitled to take outwrit thereafter without notice.
AMERASINGHE, J. – I agree.
WADUGODAPITIYA, J. – agree.
PUNCHIHEWA v. ABEYWARDENA