074-NLR-NLR-V-72-A.-H.-DINGIRI-AMMA-Appellant-and-R.-A.-W.-D.-APPUHAMY-Respondent.pdf
Dingtri Amnia v. Apptthamy
347
1969 Present: Siriraane, J., Samerawickrame, J., and Wijayatilake, J.
A. H. DINGTRI AMMA, Appellant, and R. A. W. D. APPUHAMY*
Respondent
S. G. 62(67 (Inly.)—D. 0. Kuruiiegala, 2176/P
Partition action—Non-appearance of plaintiff on trial date—Dismissal of action—Whether it debars institution of a second action—Res judicata—Partition Act(Cap. 69), ss. 10, 12, 25, 29, 63, 66, 71, 76, 79—Civil Procedure Code,ss. 84, SS, 207, 403, 406, 547—Inapplicability of sections S4 and 85 in apartition action.
Where a partition action is dismissed in terms of section S4 of tho CivitProcedure Code on the ground of the non-appearance of the plaintiff on thetrial date and without any adjudication on the plaintiff’s rights, the order ofdismissal would not operate as res judicata in a subsequent action brought bythe plaintiff for partition of the same land.
Obiter : The provisions of Chapter 12 of tho Civil Procedure Code relating tothe consequences and cure of defaults in appearing have no application at all toa partition action instituted under the Partition Act.
Appeal from an order of the District Court, Kurunegala.
E. A. G. de Silva, with Ben Eliyatamby and (Miss) S. M. Senaratne,for the 1st defendant-appellant.
W.D. Gunasekera, with IF. S. Weerctsooria, for the plaintiff-respondent.
Cur. adv. vuU.
■' 34S
ST /IT.MANE, J.—Dxngiri Auima v. A ppuharny
November 13, 1909. Sirimakje, J.—
The plaintiff had filed an action No. S0G7 for the partition of a certainland on the footing that it originally belonged to one Mudiyanse, whoserights devolved on his daughters. He claimed that the rights of two ofthe daughters passed to him and the 2nd and the 3rd defendants, andthose of tho third daughter to the 1st defendant.
The 1st defendant filed a statement claiming the entire land on thofooting that tho two daughters from whom the plaintiff claimed hadmarried in “ diga ” and inherited no rights to this land.
At the trial in the District Court, the plaintiff succeeded. In appeal,however, the case way sent back for rc-trial. The plaintiff was absent on^he trial date, and a Decree Nisi dismissing his action had been entered.The plaintiff then purged his default to the satisfaction of the trial’Judge who restored the case to the trial roll. On an appeal b}’ the1st- defendant that order.' too, was set aside, and the Decree Nisidismissing the action was, made absolute.’-
The plaintiff thereafter filed this action for partition of the sameland.
We cannot now interfere in any wav with the order of dismissal in
Vw
U. S067. But wo have to consider what effect that order has on thepresent case.
A partition action is brought to put an end to the inconvenience ofcommon possession. Apart from the special procedure prescribed forsuch actions, both in the Ordinance of 1S63 and the Partition Act of 1951^Chapter 09), such an action is very unlike any other action based on a“ cause of actiou ” as defined in the Civil Procedure Code. In thepresent action, like in all other actions for partition, whether filed underthe Ordinance or the Act, the plaintiff avers in para. 14 of the plaint- thatcommon possession of tho laud is inconvenient and impracticable. Thatis the basis on which he conies to Court.
It is true that tho title of a plaintiff is often challenged in whole or inpart by the defendants. But the filing of a statement of claim raising acontest does not transform a partition action into an action for declarationof title. Such a statement does not, in my view, really affect the natureof the proceeding, which has to be ascertained by looking at the plain-tiff’s case as stated by him. Ho does not know, or is not expected toknow, at the time he files the action, exactly what the defendants maysav. Sometimes manv contests aro raised in the statements of claim,but one is only too familiar with the verv large number of cases wheresuch contests arc given up at the trial. In my view there is no differencebetween a Partition Action, which is contested {before an adjudicationon tiie contests) and one which is not. As far ns the plaintiff is con-cerned, the basis on which he comes into Court is the inconvenience ofcommon possession. It would be different, of course, if there had been.an adjudication on the rights he claimed. I referred to this aspect of
349
SIRIMAXE, J.—Dingiri Amina v. Appuhanuj
the matter because Counsel for the appellant argued at some length thatif a partition action is uncontcstcd (a partition action " simplic-itev ” as hecalled it), then an order under section S4 of the Civil Procedure Codewould not operate as res judicata, but, according to his submission, oncea statement of claim is filed raising a contest, such an order wouldprevent the plaintiff from coining into court again, in view of section207 of the Code.
I am in respectful agreement with Finn's, A.C.J. when he said inAbf.i/'sitiidere o. Bahuva *,
“ Now clearly in a partition action the action itself is not foundedupon a wrong. It- is an action to give relief against the inconvenienceof common possession, so that a partition action at its institution isnot an action founded upon a cause of action as defined in section 5,but it would be an action under the definition of ' action * given insection C. Section 207, if the limitation contained in the explanationbe regarded as a limitation on tho main words of-tho-scction,.would, not _apply to partition actions, but. there is no doubt that in partitionactions a contest frequently arises between the parties with regard tothe rights of parties and title generally, and with regard to which theparties seek redress, suc h a contest would be based on a cause of actionas defined in section 5, and the. adjudication upon it might well lie re.vjudicata under section 207.”
lie went on to sa v,
“ If one regards a partition action as an action founded on somecause, even if it be not such a cause as would fall within the definitionin section 5 of the Civil Procedure Code, then the cause of action■would seem to be a recurring one, that is, it is duo to a continuanceof the common ownership which exists from day to day as theinconvenience of common ownership recurs day by day."
The earlier case (D.C. 8067) was dismissed for want of appearancewithout any adjudication on the plaintiff’s rights. That dismissal, inmy view, is no bar to the present action, for the inconvenience ofcommon ownership recurs day by day.
In the case of Silva v. Juwa 2 relied on by the appellant, the earlieraction brought by the plaintiff was one for declaration of titfe to a land.Before the defendant intervened in the subsequent partition action,which the plaintiff filed, an order of abatement had been entered in theland case. The Court had to consider the effect of section 403 of theCivil Procedure Code and Garvin, S.P.J. said at page 166 :
” This would, therefore, appear to be a fresh action in the sense thatso far as the intervenient and the plaintiff are concerned this actionwas brought by the plaintiff as against the intervenient subsequent tothe date of tho order of abatement.”
> {1925) 26 N. L. R. 459.
* {1935) 37 N. L. R. 165.
350
SI R1 MANE, J.—Dingtti Aunna v. Appuhauuj
It would appear from the facts of that case, that the second action wasa mere subterfuge to circumvent the order of abatement. I think thatcase is distinguishable from the facts of t he present case. In Kandavanamv. Kandasicamy 1 the Court again had to consider the effect offitt unconditional tcilhdrawal by the plaintiff of a partition action undersection 406 of the Civil Procedure Code, in view of the statutory bar insection 406 (2) which precludes the plaintiff from bringing a fresh action insuch circumstances. The facts there, too, were different from those-inthe present case, though, with great respect, I venture to think that theCourt had gone too far when it held that a defendant who consented tothe withdrawal of the action was also prevented -from bringing a freshaction.
Jayeuardene on Partition at page 107 refers to a case decided in 1020(Perera v. Punch irala 2) where it was doubted whether section 400 of theCode applied to partition actions.
Nor do I think that those cases, where it has been held that a partitionaction was one ei for the recovery of property ” for the purposes ofadministration required by section .647 of the Civil Procedure Code, canbe regarded as authority for the proposition advanced for the appellant,that a partition action is no different from an action for declaration oftitle to land. Though, -with great respect, I am unable to share the viewexpressed in Herath r. The Attorney-General* that the provisions ofsection 207 of the Civil Procedure Code apply only to decrees entered 'underChapter 20 of the Code, yet I think that the learned District Judge v* asright (this being a partition action) when lie held that the order in theearlier case was no bar to the present action.
I have examined the question so far on the basis that an order undersection S4 of the Civil Procedure Code is an appropriate order in apartition action.
But I must say, however, that I am very strongly of the view that t lieprovisions of the Civil Procedure Code relating to the consequence andcure of defaults in appearing (Chapter 12) have no application at all toa partition action instituted under the Partition Act.
One consequence of the laws of inheritance obtaining in the Island isthe common ownership of small j>Arcels of land. This in turn leads tomany disputes', often resulting in violence. The Partition Act wasdesigned to enable a co-owner to put an end to this evil and obtain aDecree in Item. At the same time the legislature has p>aid heed to thefact that a partition action, once instituted, must be jjrosecuted withreasonable diligence, not only because of the prohibition against aliena-tion pending such actions, but also because the business of a court should 1
1 (1.955) 57 X. L. Ji. 211.- (1020) 2 C. L. Rec.S3..
3 (195S) CO X. L. 11. 193.
SI RIM AXE, J.—Dingiri Aiuiku r. .1 ppuhamy
351
not be hindered by a number of semi-animate actions pending on its roll.'I'be Act, tJiereiore, provides for the dismissal of an action for manydefaults, for example, the failure to deposit survey fees (sections 10 and20), the failure to comply with the requirements relating to declarations,summonses, notices, etc., at the commencement of the action (section 12),the failure to provide security (section G3), default in payment of costs(section GG) or non-prosecution of the action (section 71). But in everyone of these instances, when the action is dismissed without an adjudi-cation, section 7G provides that such a dismissal should not operate as abar to the institution of another action.
Absence of a plaintiff without, excuse on the trial date surely amountsto a failure to “ diligently prosecute the action One has to bear inmind that the procedure prescribed under tlie Act before a case is readyfor trial is elaborate and expensive, and also that in a partition actionevery defendant is in the position of a plaintiff.
Section 71, therefore, provides that :
iC No partition action shall abate by reason of the non-prosecutionthereof, but, if a partition action is not prosecuted with reasonablediligence after the Court has endeavoured to compel the parties tobring the action to a termination, the Court may dismiss the action :
Provided, however, that in a ease where a plaintiff fails or neglectsto prosecute a partition action the Court may, by order, permit anydefendant to i>roseeutc that action and may substitute him asplaintiff for the purpose and may make such order as to costs as theCourt may deem fit.’'
In my view, the above section provides for the procedure which isapplicable when a plaintiff in a partition action is absent, and section 70of the Partition Act, relied on by the appellant, which provides for acasus omissus has no application.
Even a cursory examination of sections S4 and 85 of the CivilProcedure Code would reveal their inapplicability in a partition action.Section 84, for instance, provides for the dismissal of the plaintiff’saction if he fails to appear on a day fixed for the appearance and answerof a defendant. It is very common to find a large number of defendantsin a partition ease. They are never served with summons at one and thesame time, and a ease had to be called on several dates before this is done.
A plaintiff would be in peril on every date that a defendant appears onsummons.
Section So provides for the ex parte hearing of a case and the passingof a Decree Nisi if the defendant fails to appear on the day fixed forhis appearance and answer. Such a procedure, in addition to beingobviously impracticable in a partition case, would also be contrary tothe provisions of section 25 of the Partition Act which require tho
ALLES, J.—In rc Rajapcikse
3.72
Court to examine the title of each party before entering an InterlocutoryDecree. Even as far back as 1895, in Wider a maseket a v. Fernando 1. it-was shown that a Decree Nisi was altogether irregular in a partitionaction.
The appeal is dismissed with costs.
Sameraavickbame, J.—I agree.
Wija vatix-akb, d.—I agree.
Appeal dismissed.