AMEEN v. PATIMUTTU

053-NLR-NLR-V-38-AMEEN-v.-PATIMUTTU.pdf


264
Ameen v. Patimuttu.
1936Present: Moseley J. and Fernando A.J.
AMEEN v. PATIMUTTU.
49 & 50—D. C. Colombo, 309.
Res adjudicata—Action by plaintiff for accounting of rents collected by defendantas manager—Defendant’s denial of his capacity as manager—Actiondismissed of consent—Subsequent action for declaration of title—Plea ofres adjudicata—How far it is valid in a decree of dismissal—CivilProcedure Code, s. 207.
In D. C. Colombo, No. 29, the plaintiff sued her husband, the defendant,asking for an account of the rents received by the defendant as hermanager from the properties in question and for a decalartion that shewas entitled to certain premises which had been purchased by thedefendant out of the rents collected by him.
The defendant in his answer denied that he collected the rents asmanager of the plaintiff. He further alleged that it was agreed that thedefendant should take the rents for himself and that the rents were in factapplied to the maintenance and support of the plaintiff and her childrep.
Ameen v. Patimuttu.
265
The action was dismissed of consent, the plaintiff and defendant havingsettled their differences. The plaintiff brought the present actions inwhich she asked for declaration of title to the same properties and fordamages for wrongful possession.
Held, that the actions were not barred by the decree of dismissal enteredin the previous action.
Where an action is dismissed of consent, the decree of dismissal canoperate as res adjudicate only where there is no legitimate doubt as tothe issues which were involved in the decision on the facts which havebeen expressly or impliedly decided thereby.
I
N these actions the plaintiff sued her husband for declaration of titleto certain premises for damages, for wrongful possession, and for
ejectment. The actions were tried together. The defendant inter aliapleaded that he had effected certain improvements to the premises andclaimed compensation for them. He further pleaded that the order madein D. C. Colombo No. 26 was a bar to these actions. In the lattercase plaintiff had asked for an account of the rents recovered by thedefendant as her manager from the properties in question and for adeclaration that she was entitled to certain premises which the defendanthad bought out of the rents collected by him. The action was dismissedof consent, the parties having settled their differences. The learnedDistrict Judge held that the decree of dismissal was not res adjudicata.
H. V. Perera (with him N. E. Weerasooria, L. A. Rajapakse, E. F. N.Gratiaen, and J. A. T. Perera), for defendant, appellant.—A consent decreeoperates as res judicata. (Dingiri Menike v. Punchi Mahatmaya1; Sinniahv. Elliakutty!) One must look at the pleadings to find out the point inissue. The right claimed by the defendant in this case is the same rightclaimed in the previous case, i.e., the right to collect the rents. Thedismissal of the plaintiff’s action is a bar to the denial of that claim.The fact that the earlier action was between husband and wife does notaffect the question of res judicata* As long as the decree is not set asideit is res judicata {18 N. L. R. 510). Res judicata operates not merelywith regard to the subject-matter of the action but the grounds on whicha person asks for relief. The grounds of settlement can be inferred.The expression “ cause of action ” is used in section 207 of the Code inthe wider sense, i.e., the grounds on which the plaintiff asks for relief.No distinction is drawn between a decree of consent and without trialand a decree after trial. The section says “same cause”, not “samecause of action”. The former word has a wider significance (16 N. L.R. 257). Pereira J’s. view has been adopted in later cases (Loku Band av. Piyadassa’). This is in accordance with the general principles ofres judicata. (Hukurn Chand, p. 10, article 9.) The right claimed inthis case is a usufruct and may be acquired by prescription (ArunasalamChetty v. Bilinda4). The defendant collected the rjents in his own rightand did not account to his wife for them.
N.Nadarajah (with him E. B. Wikramanayake, Marikar, and Sena-ratne), for plaintiff, respondent.—The sections applicable are 406 to408 where an action is dismissed on a consent motion. This is not
1 13 N. L. R. 59.* 34 N. L. R. 37.
*4 0. W R. 155.
‘ 24 N. L. R. 311.
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res judicata.(Spencer Bower, ss. 33 and 34; Hukum Chand, 125,
s. 58). Mere consent decree does not operate as res judicata unless theCourt has brought its mind to bear on the question (Jenkins v. Robert-son Gonchie v. Clayton3). Only the prohibitory or mandatory partof the decree is binding. The dismissal of plaintiffs action would baranother action on the same cause of action but is not res judicata.Where a case can be decided on one issue the findings on other issues willnot he res judicata (Appuhamy v. Punchihamy *). Parties must advertto the point in issue and settle it (A. I. R. (1934) Madras 454). There isno decree of non suit now. The Code has substituted sections 207 and 408.In the case of a compromise the Court acts under section 408. The casein Sinniah v. Elliakutty (supra) can be distinguished. In that case theplaintiff admitted defendant’s title to the lot in question. An admissionis sufficient for a Judge to come to a decision. In the previous case theburden was on the defendant to prove his prescriptive title to the usu-fruct. Can it be said that the dismissal of plaintiff’s action was anadmission of his claim. (14 N. L. R. 342; Ord. v. Ord. (1912) 2 K.B. 432,at 439.) There is no evidence of prescriptive possession of usufruct.Possession by the husband is presumed to be possession by the wife(Ram Dass v. Kishon Guptas ‘). Possession must be proved to be adverse.Mere possession is not enough (Nagudu Marikar v. Mohamadu°).
H. V. Perera, in reply.
November 6, 1936. Fernando A.J.—
These are two actions between the plaintiff-respondent and thedefendant-appellant, who are husband and wife. In D. C. Colombo No. 309,the plaintiff prayed for a declaration of title to premises Nos. 114-118,Bankshall street, No. 91, Maliban street, and 226, New Moor street. In
C. Colombo No. 329, the plaintiff prayed for declaration of title topremises No. 33, Second Gabos lane, No. 7, Cross street, No. 28, Fisherslane, and another premises in New Moor street. In addition to theprayer for declaration of title, she also asked for damages on the footingthat the defendant had been in wrongful possession of these premisesand for ejectment. Both cases were fixed for trial on January 16, 1936,and on that date it was agreed that both actions be tried together.The two cases were accordingly tried together and one judgment hasbeen delivered from which the defendant appeals to this Court.
The defendant set up various defences to the plaintiff’s claim and furtherpleaded that he had effected certain improvements to the premises fromtime to time and claimed compensation for the expenses so incurred byhim, and he also prayed for restitution of conjugal rights as betweenhim and the plaintiff. At the beginning of the trial, the learned DistrictJudge thought that the question of the restitution of conjugal rightscould not conveniently be dealt with in these proceedings, and gave leaveto the defendant to pray for such relief in another action.
Certain issues were then framed and the learned District Judge heldthat the plaintiff had given notice to the defendant on February 2, 1934,
'‘1H.I. (Scotch App.) 117 at 122.*17 N. L. R. 271.
* 11 L. T. 732.* 24 W. R. 274.
‘7N.L. R. 91.
FERNANDO A.J.—Ameen v. Patimuttu.
267
that he was no longer to collect the rents of the properties in question,that the plaintiff was entitled to a sum of Rs. 9,200 as rents of the saidproperties, that the defendant was collecting the rents at the request•either implied or expressed of the plaintiff, and that the defendant wasnot entitled to any compensation. He also held that at the marriageof the parties there was no agreement by which the right to possess thepremises was given to the defendant, that the defendant was not entitled tothe rents in question, and that the order made in D. C. Colombo, No. 26,was no bar to the present action and did not operate as res judicata.
Counsel for the appellant argued before us that the decree in that actionwas res judicata, and he also argued that defendant had been in possessionin pursuance of his right to the rents on the agreement alleged by him,and that he had acquired a right to those rents by prescriptive possession.He also argued that it was proved in the case that improvements hadbeen effected by the defendant, and that these improvements had not infact been assessed by the learned District Judge.
The most important question that was argued before us was the questionof res judicata. It would appear from the proceedings in D. C. Colombo,No. 26 (D 1), that the plaintiff in this action asked for an account of therents recovered by the defendant as her manager from the properties inquestion from July 1, 1928, to January 31, 1934, for an order on the defend-ant to pay such amount to the plaintiff, and for a declaration that she wasentitled to premises called “ Donnington ” which she said had been pur-chased by the defendant out of the rents collected by him. The defendantin his answer D 2 denied that he collected the rents as manager of the plain-tiff, or that he was under any obligation to render an account. He furtheralleged that it was agreed that the defendant should take the rents forhimself, that plaintiff had acquiesced in his appropriation of the rents,and that the rents were in fact applied to the maintenance and supportof the plaintiff and her children and in household expenses. The decreeD 4 ordered that the action of the plaintiff be dismissed, each party tobear his own costs, and it would appear from the evidence that thisdecree was entered of consent, the plaintiff and the defendant havingthemselves settled their differences.
Now on the question of res judicata there is no distinction between thelaw of Ceylon and that of England, and the provisions of sections 34,207, and 406 of the Civil Procedure Code are not exhaustive and maybe supplemented by the English law. (See Samitchyappu v. Perera1.)Section 34 provides that every action shall include the whole of the claimwhich the plaintiff is entitled to make in respect of the cause of action.and if a plaintiff omits to sue in respect of, or relinquishes any portionof, his claim he shall not afterwards sue in respect of the portion soomitted or relinquished. Section 207 provides that all decrees passed bythe Court shall, subject to appeal, be final between the parties. Theexplanation to that section provides that every right of property, orto money, or to damages, or to relief of any kind which can be claimedor put in issue between the parties Upon, the cause of action for whichthe action is brought, whether it be actually so claimed, put in issue,or not, becomes on the passing of the decree a res adjudicata, and section21/3813 c. A. C. 30.
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406 provides that a plaintiff may be allowed to withdraw from an actionwith liberty to bring a fresh action for the subject-matter of the action.
As far as this plea of res judicata is concerned, the real question is whethera plaintiff, whose action is dismissed as the result of a settlement betweenthe parties, is barred from bringing a subsequent action for anythingother than the relief actually claimed in the action. This Court has heldthat a judgment entered of consent between the parties, or as the resultof a decisory oath, will operate as res judicata as much as any judgmententered as the result of an adjudication by the Court (see Dingiri Menikav. Punchi Mahatmaya1), and Spencer Bower in his treatise on ResJudicata at page 23 sets out the English law as follows:—“Any judg-ment or order which in other respects answers to the description of resjudicata is none the less so because it was made in pursuance of theconsent and agreement of the parties. It is true that in such cases theCourt is discharged from the duty of investigating the matters in contro-versy and does not pronounce a judicial opinion upon any of such matters ;but it is none the less true also that at the joint request of the parties.the tribunal gives judicial sanction to what those parties have settledbetween themselves, and in that way converts a mere agreement into ajudicial decision on which a plea of res judicata may be founded. …
But though consent judgments and orders are undoubtedly decisions inthe sense that the actual mandatory or prohibitive parts of the judgmentis conclusively binding, it may often be a matter of legitimate doubt asto what, if any, particular questions or issues were expressly or impliedlythe subject of the consent, and of the decision. For this purpose theCourt will closely examine all such evidence, if any, as is available andadmissible. Any issue or question which is thus shown to have beenrecognized or taken by the parties as the subject of the litigation, and ofthe judgment or order agreed to, is deemed to have been thereby conclu-sively determined so as to preclude any subsequent challenge. Wherehowever there are no such materials available as are above indicated,there is nothing which can operate as a decision of any particular questionor issue, and neither party is estopped from disputing anything but theactual judgment or order itself.” Continuing at pages 28 et seq. he statesthat, “When an action is dismissed by a judicial tribunal after a trial orhearing, it is often a question whether anything can be said to have beendecided, so as to conclude the parties, beyond the actual fact of thedismissal. The answer to this inquiry depends upon whether on referenceto the record and such other material as may properly be resorted to,the dismissal itself is seen to have necessarily involved a determinationof any particular issue or question of fact or law, in which case there is anadjudication on that question or issue; if otherwise the dismissal decidesnothing, except that in fact the party has been refused the relief which hesought . . . .” “ The dismissal of an action,” he says, at page 30,“ which can only succeed on establishing either fact x or y may involvea decision negativing both of these facts ; but if the action is founded onx plus y, its dismissal does not, of necessity, carry with it a decision as toeither x or y, since the action, for aught that appears from the dismissal
113 N. L. B. 59.
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itself, may have failed, because fact x had not been established, thoughfact y had been, or vice versa, or because neither fact had been established sand the dismissal therefore in such circumstances does not preclude theunsuccessful plaintiff from suing again, in another form of action, for thesuccess of which proof of x only, or of y only, is sufficient. ”
Spencer Bower in support of these propositions cites the case of In reAllsop and Joy’s Contract. 61 Law Times 213, where Chitty J. said, “Theestoppel is not of any matter incidentally cognizable, nor of any matterto be inferred by argument from the judgment. Much less thereforeis either side estopped by the reasons which the Judge assigns for theconclusion that he comes to. It is the conclusion that constitutes theestoppel. Now after what I have said, it is pla'in that this bill mighthave been dismissed on either of the two grounds. It might have beendimisssed on the ground that the plaintiff already had the legal estate,or on the other ground that he had not the equitable estate in feesimple. I am not at liberty, nor in my opinion would any Court here-after be at liberty, to adopt either one of these propositions as the groundand say, ‘ it is this and not that ” He then proceeds to cite the judg-ment of Lord Herschell in Concha v. Concha1 to the effect that “ anestoppel is an estoppel only so far as regards all matters necessary to bedecided in the suit”. The law in India appears to be the same (see HukumChand on Res Judicata, p. 129 et seq.
Our law being the same as the law in England, it seems to me that ininterpreting section 207 of the Code, we have to bear in mind theseprinciples of the English law as to res judicata which are also applicablein Ceylon and that the words “ all decrees passed by the Court ” mustmean all decrees which give expression to a judicial decision as well as alldecrees entered of consent, where there is no legitimate doubt as to theissues which were involved in the decision, or the facts which have im-pliedly or expressly been decided thereby. The learned District Judgesets out the circumstances in which the motions in D. C. Colombo, No. 769,were drawn up and he states that there was a suggestion by the Judge be-fore whom these cases came up, that the plaintiff and defendant (wife andhusband) should get reconciled and adjust their differences. The partiesmet in a vacant house or room and the motions were drawn up as the resultof the interview, although the plaintiff’s proctor did not in fact approveof the settlement. We are only concerned, however, with the decree in
C. Colombo, No. 26 (D4), and if the position I have set out above is correctthen that decree itself as well as the pleadings in the case must be examinedin order to ascertain what the subject of litigation was, and what issue orissues, if any, must be considered as having been determined by thatdecree. In the plaint D 1 the plaintiff set out that at the time of hermarriage she was entitled to certain premises, and that the defendantafter the marriage took over the management of the properties andcollected the rents and profits thereof from about February, 1925, to theend of January, 1934. She then pleaded in paragraph 4 that the defendantinformed the plaintiff that he would collect the rents and later buy a housein the name of the plaintiff, and that in accordance with this arrangementa house was purchased, but the plaintiff later discovered that the house
1 11 A. C. 541.
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had been purchased in the defendant’s name, and not in the name of theplaintiff ; she therefore claimed the sum of Rs. 25,000 which had beenpaid for the property, or in the alternative a declaration that the defendantholds the property in trust for her. She further pleaded that the defend-ant had failed to render an account for the moneys collected by him,and prayed that judgment be entered in her favour for a sum of Rs. 20,000as money in his hands. In his answer D 2, the defendant denied thathe took over the management of the properties, or that he received therents as such manager on behalf of the plaintiff. He also denied thearrangement with regard to the purchase of the house in question, andhe pleaded that he purchased the same with his own money. He thenwent on to plead that he was under no obligation to render an accountto the plaintiff, and that he had collected the rents in accordance with anarrangement made at the time of the marriage of the plaintiff, that theplaintiff herself had acquiesced in his collection and appropriation of therents, and had never claimed the said rents. He further pleaded that thenett amount of the rents had been expended in the maintenance andsupport of the plaintiff and of her children. Now it is obvious that certainquestions would arise from these pleadings. The defendant had admittedthat plaintiff was the owner of the premises in question, but had deniedtaking over the management, so that in order to succeed in her claimfor an account, the plaintiff had to prove that defendant was her manager.
If she failed to prove the management she might still succeed in her claimwith regard to the property purchased by the defendant if she provedthat nevertheless, the rents were her own property and that the defendanthad actually purchased the property with the money recovered by him asrent. The question would also arise, whether the defendant had collectedthe rents by his own right and whether he had acquired that right as theresult of an agreement between himself and the plaintiff, and also whetheror hot the purchase had been with the money so collected or with othermoneys belonging to the defendant. Then there was the question ofcompensation claimed by the defendant for -improvements effected to theproperty, as to which, it may have been possible to frame an issue inview of paragraph 5 of the answer, so that it is clear that there were anumber of issues which would arise on the pleadings. Can the dismissalof the action in these circumstances involve a decision on all these issues ?
It seems to me that considering the circumstances in which that actionwas dismissed and the terms of the decree, the dismissal of that actionwill not preclude the unsuccessful plaintiff from suing again in anotherform of action, where she might only prove one or more of the facts onwhich the previous action was based. I would accordingly hold thatthat decree is not a bar to, the present action.
In the case of Appuhamy v. Punchihamy Lascelles C.J. held that in acase where there are two findings of fact, either of which would justify _the decree which was entered, the finding which can operate as res judicatawould be the finding which should in the logical sequence of necessaryissues have been first found, and the finding of which would have renderedthe other of the two findings unnecessary. As de Sampayo J. puts it, “ itis well settled that for the purposes of res judicata the issue must be a
> 17 N. L. R. 271.
Kalenderumma v. Marikar. „
2711
substantial and not a mere incidental issue ”, and he sets out what hethought was quite clearly the principal and substantial issue in theearlier action. In this decision the Judges followed the Indian case ofShib Charan Lai v. Ragu Nath Apparently the principles set out bySpencer Bower, at page 30 as applicable in England have not beenadopted in India. Even if the principle laid down in Appuhamy v.Punchihamy (supra) is applicable to this case in spite of the circumstancesthat there was no trial and the action was dismissed as the result of asettlement, the defendant can only rely as res judicata on the implieddecision of the substantial issue in the previous action and it would appearthat the substantial issue in that case was whether the defendant had infact collected the rents as manager of the plaintiff. With regard to anyother issues that were directly or indirectly involved in that action,the decree dismissing the plaintiff’s action would not be res judicata. Itfollows, therefore, that that plea must fail and that issue 8 must beanswered in favour of the plaintiff.
On the rest of the case, I see no reason to interfere with the finding ofthe learned District Judge on issues 1, 2, 3, 4, 5, and 6. With regard toissue 7 a, b, and c, the learned District Judge held that the defendant wasnot entitled to compensation for the improvements effected to the pre-mises. The evidence led for the defendant was, as the learned Distr’ctJudge found, extremely unsatisfactory and the defendant himself wasnot able to produce any accounts of the money spent by him. Thepremises to which the improvements were effected admittedly belongedto the plaintiff, and it follows from the findings on issues 3, 4, 5, and 6that the moneys recovered by the defendant as rent were moneys belong-ing to the plaintiff. If the defendant in his capacity as husband utilizeda part of the money in effecting improvements to the premises from whichhe was collecting rent, I do not think he can claim to recover the moneyfrom the plaintiff. I see no reason, therefore to interfere with the findingof the learned District Judge on these issues, and I would affirm thedecrees of the District Court, and dismiss these appeals with costs.
Moseley J.—I agree.
Appeal dismissed.