034-NLR-NLR-V-17-PERERA-v.-APPUHAMY.pdf
1918.
( 112 )
Present: Pereira J. and Ennis J.
PEBEBA v. APPUHAMY.
39&—D. C. Negombo, 9,400.
Bes judicata—Claimin reconvention—Noreplication—Dismissalof
action—Is claim in reconoention res judicata ?
Where a defendant in an action^claimed in reconventian fromthe plaintiff the value of certain nuts plucked by the latter fromcertain particular trees, and there was no replication in the case,—
Held, that the mere dismissal, without evidence, of the claim inf,reconvention is not- necessarily res judicata on the question as tothe plaintiff’s right to the produce of the trees.
fJpHE facts appear from the judgment.
Bawat K.G., for plaintiff, appellant.
A. St. V. Jayewardene, for defendant, respondent.
i Cur. adv. vult.
December 16, 1913. P&rei&a J.—
The question for decision in this case is whether the judgment incase No. 19,714 of the Court of Bequests of Negombo is res judicata,and is a bar to the maintenance by the plaintiff of his claim In thiscase. The plaintiff is the usufructuary mortgagee of the parcel ofland described in the second paragraph of the plaint. The defendanthas a valid lease, from the owner, of fifty coconut trees growing onthe land. Where these fifty trees are to be located, that is to say,whether they are on the north-east of the land, or whether they arecertain trees marked as the defendant states in his plaint in caseNo. 19,714 (which, the present plaintiff contends are on the north-west of the land), is a matter in dispute between the defendant onthe one side and the plaintiff andthe owner of the land (the mortgagor)'on the other. The present action is brought by the plantiff on thefooting that the defendant, not being entitled to any trees on thenorth-west of the land, has picked nuts from trees on that side.The question is whether it is to be deemed to have been decided incase No. 19,714 that the trees on the north-western side of the landwere the trees in which the defendant had a leasehold interest. Inthat case the present plaintiff was the defendant, and he claimed inreconvention a certain sum of money alleged to be the value of nutspicked by the present defendant, who was the plaintiff in that case,from trees on the north-western side of the land. The case was laidover to abide the result of another case, and on the termination of
( 113 .)
that case, without any evidence or admission, judgment was enteredin the oase (19,714) dismissing the present plaintiff’s claim in re*convention. Now, the claim in reconvention involved two questions:
Whether the defendant was entitled to pick nuts from the treeson the north-western side; and (2) whether he in fact pioked nutsfrom those trees. There was no reply to the claim in reconvention,and, therefore, all the averments in support of it were to be regardedas denied by the present defendant. In that state of things', hadthe plaintiff succeeded in his claim, the decision in the case wouldhave been res judicata with' reference to the question as to thedefendant’s right to pick nuts from the trees referred'to, because,in order to succeed in his claim, it was necessary that the plaintiffshould prove, not only that the defendant ■ was not entitled to picknuts from the trees, but that the defendant di<T in fact pick nuts.The converse proposition, however, does not hold good, that is tosay, the success of the defendant did not necessarily mean that hewas entitled to pick nuts from the trees in question. In his caseit was enough for him to establish either of the alternatives, namely,that he was entitled to pick nuts from the trees m question, or thathe in fact did not pick nuts at all. That being bo, the decision inthe case did not necessarily involve the decision of the issue as tothe defendant’s right to pick nuts horn the trees in question. Therewas no pleading delivered by the present defendant in reply to theclaim in reoonvention, and it is impossible to say to which of thetwo defences open to the defendant the deoision in the case- can beattributed. I can find no case quite in point, but the principlesunderlying the decision in the case of Modusudham Shaka Mundul v.Brae 1 apply. There it was held that an ex parte decree, when final,is res judicata only so far as the decision necessarily decided anissue.
I would set aside the judgment appealed from and remit the caseto the Court below to be proceeded with. I think that the appellantis entitled to his costs in both Courts.
Ennis J.—I agree.
Set aside.
IMS.
Prbkiba J.
Perera v,Appuhamy
11. L. S. 16 Cal. 300