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Present : Schneider and Lyall Grant JJ.ANNAMALAY CHETTY u. THORNHILL.
168—D. C, (Inty.) Ratnapura, 4,687.
Bee judicata—Action for good* delivered—Failure to register under
Business Names Ordinance—Institution of fresh action pending
appeal—Merger of claim—Civil Procedure Code, ss. 34 and 40$,
In action No. 4,122 of the Court the plaintiff sued the defendantto recover a sum of money upon a running account between thetain respect of goods sold and delivered and money advanced.
The defendant pleaded that the plaintiff had not complied withthe requirements of the Business Names Registration Ordinance, andthat his action failed.
The plaintiff obtained judgment and the defendant appealed.While.the appeal was pending, the plaintiff having conformed to therequirements of the Ordinance instituted 'the present action,in which the claim was founded upon the same transactions ae inthe previous action save for the addition of a cause of action basedupon an account stated.
Held, that the plaintiff's claim was merged in the decree enteredin the previous case, and that the decree barred the second action.
N action No. 4,122 the plaintiff sued the defendant to recovera sum of Rs. 54,577:46 with further interest as balance due
upon a running account between him and the defendant in respectof moneys advanced and goods sold and delivered between themonth of August, 1923, and June, 1924.
The defendant while denying the correctness of the statement ofclaim pleaded inter alia that the plaintiff was precluded by theprovisions of section 9 of the Business Names Registration Ordi-nance, No. 6 of 1918, from enforcing his rights under the contract.
After trial, judgment was entered in .favour of the plaintiff onJanuary 17, 1927, but the defendant appealed. During the pendingof this appeal, the plaintiff having complied with the requirementsof the Business Names Registration Ordinance instituted thepresent action on June, 2, 1927, the foundation of which was thesame transaction as the previous action except for the addition ofa cause of action based upon an account stated. The defendantcontended that the action wa$ barred by the decree entered in theprevious action. Thereupon the learned District Judge dismissedthe plaintiff's action.
Hayley, K.C. (with Gnanapragasam), for plaintiff, appellant.In Roman-Dutch law the principle of res judicata i6 discussed in4 Nathan, pp. 2157 and 2158.
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Under the Indian Civil Procedure Code oi 1008, section 10, and 1888the older Code of 1892, section 12, it was held that the second action Awmmdayon the same cause of action cannot go on, neither section precludes Gke&yv.the institution of a second action: only the trial is precluded. Tham^a8ee .Nemaganda v. Parasha.1
The same principle has has been applied where letters of administra-tion have not been stamped: a second action is allowed (Karuna-wardens v. Wijesuriya2).
Similarly under the Business Names Ordinance, it is open to aparty to bring a fresh action (Karuppen Chatty v. Harrison,
Grosfield, Ltd.9). See Meheti v. Tvlya*
See 4 Maarsdorf 226, para 2.
Under section 207 of the Civil Procedure Code an order is notfinal if there is an appeal from it. In this case there has been noapplication for stay of action. (Sarkar 830.) Section 18 of theOld Indian Code of Civil Procedure, 10 of the New Indian Code.
See Voet X. I, 2; 3 Court of Appeal Cases 30; Hukm Chand 145.
In Singh etal. v. Singh5 Privy Council held that the appeal destroyedthe finality of the decision (Spencer Bower, p. 100).
H. V. Perera, for defendant, respondent.—The cause of action* in this case and the causes of action in the other case are the same:the non-payment of a debt. The promise to pay is not a furthercause of action.
A promissory note extinguishes the liability on the bare debt(Palaniappa v. Saminathan*).
The provisions of the Code against appellant are sections 406, 83,
34: the whole of the claim must be included in the same action.
All rights of the plaintiff are merged in the first decree. It is notmerely a question of res judicata: it is also a merger of rights in adecree. (Spencer Bower 175.) Former recovery or Autrefois acquit,
1909) 2 Chancery 656: 11 Adolphus & Ellis’s Report 763: 6 Bom.
112: 24 Cal. 616:^11 All. 148.
Even when permission is given by the Appeal Court to bring afresh action it does not validate an action brought before. (Ponniahv. Payhamy.7)
Final does not mean not open to appeal but merely as opposed tointerlocutory. A judgment does not operate any the less as resjudicata merely because it is liable to be reversed in appeal (Mar-chioness of Huntley v. CaskeU*).
1 22 Bomb. 640.5 24 Cal. 626.
*11 N. L. B. 220.• 17 N. L. B. 56.
* 24 N. L. B. 317.7 8 N. L. B. 375.
1 3 Bom. 223.* (1905) 2 Chan. 656.
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1928 Hayley, K.O. in reply.—There is a difference between subject-Aimamqlay ma^ier juridical matter (Spencer Bower, pp. 115, 119, 121).
' Ohettyv. Account stated is a new cause of action. Under section 8 offl^*"**** Ordinance No. 22 of 1871 a specific period of limitation is given to44 account stated.”
March 13, 1928. Schkeider J.—
These appeals were argued together. Counsel for both partieswere agreed that there was no controversy as regards the facts.The facts might be stated to be the following: —
In action No. 4,122 the plaintiff sued the defendant to recover asum of Bs. 54,577.46 with lurcher interest as being the balancedue to him upon a running account between him and the defendantin respect of moneys advanced and goods sold and delivered betweenthe months of August, 1923, and June, 1924. The defendantdenied the correctness of the statement of claim and pleaded furtherthat the claim was prescribed and also that the plaintiff wasprecluded by the provisions of section 9 of the Business NamesRegistration Ordinance, No. 6 of 1918, from enforcing his rights,if any, under the contract set out in the plaint as he had failed tocomply with the requirements of that Ordinance. The plaintiffchallenged the soundness of both these defences. After trialhe obtained a decree in his favour as prayed for on January 17, 1927,but the defendant on January 19 appealed against that decree.During the pendency of this appeal the plaintiff having compliedwith the requirements of the Business Names Registration^Ordinance instituted the present action in the same District Courton June 2, 1927. In the present action the foundation of the claimis the same transactions as were relied on in the previous actionand the sum claimed is identically the same but for the addition offurther interest. But in the present action the claim is set outas on two alternative causes of action. In the first of these causesof action the claim is alleged to be due, as in the previous action,for moneys advanced and goods sold and delivered. But in thisaction certain acknowledgments by the defendant are pleaded astaking the case out of the operation of prescription. In the secondand alternative cause of action the claim is made as being upon anaccount stated. It is obvious, and the plaintiff-appellant’s counselfrankly admitted, that the present action was instituted with thesole object of preventing prescription being pleaded as .a bar toplaintiff’s claim, should the decree in the plaintiff’s favour in theprevious action be set aside.
, Beyond instituting this action the plaintiff does not. appearto have had any desire to proceed further with it till the fate of theappeal was decided. This is evident from certain facts which areto be found on the record itself. Having accepted the plaint in the
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present action the Court directed the issue of the summons on thedefendant to appear oh July 6, that is in the ordinary course*. OnJuly 1 the plaintiff took the unusual step of moving the Court forthe returnable date of the summons to be extended to September 15.This was allowed and no summons was in fact issued. But thedefendant appears to have been vigilant. He too adopted aniiniiRiml course by appearing in Court on July 5, although he hadnot been required to appear on that or any other date, and thenand there tendering his answer and moving that the Court should fixthe case for trial of the question of law raised in the answer. Asthe returnable date of the summons had been-altered from July 5to September, the plaintiff was not present in Court on the 5th.Presumably to meet the unusual situation and any consequentdelay the defendant’s Proctor undertook to give notice to theplaintiff of what had happened. The Court accepted the answerand allowed the motion by fixing the case for trial on August 22.The notice which was duly issued by the defendant’s Proctor wasto the effect that the answer of the defendant, of which a copy wasattached to the notice, had been filed on July 5, and that August 22had been appointed for the trial of the question of law raised in theanswer and that that date would be confirmed as the date for thetrial unless sufficient reason to the contrary was shown by theplaintiff. In pursuance of this notice the parties appeared in Court.The plaintiff asked that the trial of this action should not be fixed tillthe appeal in the previous action was heard and decided. He con-tended that the Court did not have the power, to fix a case for trialupon only a question of law. The learned District Judge declinedto entertain this contention and confirmed his order fixing the trialfor August 22. From this order the plaintiff appealed and thatappeal is the one bearing Interlocutory No. 168. It was filed onthe same day the order was made. Despite this appeal the. DistrictJudge held the trial on the day fixed by him and decided two issuesof law. He pronounced his judgment on August 31 dismissingthe plaintiff’s action with costs. The plaintiff’s appeal from thatjudgment is the one marked Final No. 344.
The issues of law were the following:—
Is this action barred by the action No. 4,122 of this Court
and the final decree entered of record therein ?
Is there a decree that can operate as a bar to the action in
D. C. 4,122 ?
The precise meaning of the 2nd issue is not quite apparent, butit' is obvious that what the Court was invited to decide was whetherthe decree in D. C. No. 4,122 in the plaintiff’s favour debarred himfrom instituting or maintaining the present action. That is thequestion which was discussed both in the lower 'Court and before uson appeal.
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1928 It is convenient to deal with the interlocutory appeal first. AScmncn>ER preliminary objection was taken to it. It was submitted that theJ. order was not appealable. It was argued to the defendant that theAnnamalayappeal was in effect an appeal from an order fixing a date
Chetiyv. for the trial of the action and nothing more, and that no appeal liesThornhill fj.om 8UCh ^ order; Le Mesurier v. Le Mesurier,1 Adamaly & Go. v.
de Soyaa2 were cited as supporting this contention. It was submittedfor^the plaintiff that the order appealed against was an orderinvolving something more than the mere fixing of the trial for aparticular date; that the Court after hearing the parties haddecided that the question of law raised in the answer should be firsttried, and that the trial should be on the date mentioned, and inpursuance of that decision had made the order appealed against.It is an order therefore falling within the description of an order insection 5 of the Civil Procedure Code, and was an order within themeaning of section 75 of the Courts Ordinance. In view of themanner I propose to deal with this appeal, I feel I need say no morethan that I hold with the contention that the plaintiff had a rightof appeal.
In my opinion this appeal must fail. The only objection raisedby the plaintiff-appellant to the course the Judge of the lower Courtproposed to follow was that he should have first framed the issue oflaw before forming his opinion that the action can be disposed ofon the issue of law only. Sections 146 and 147 of the CiviL ProcedureCode were referred to as supporting this contention. I am unableto take that view from the provisions of those sections. Theobjection has no substance and there is no good reason for fetteringthe discretion of a Judge in the manner contended for. I hold that1he Judge’s order that he would try the question of law as a preli-minary issue was rightly made. Accordingly I dismiss the inter-locutory appeal with costs.
Before proceeding to consider the final appeal I would state oneother fact. The judgment in appeal in action No. 4,122 waspronounced on October 21, 1927, dismissing the plaintiff’s actionon the sole ground that as he had failed to comply with the require-ments of the Begistration of Business Names Ordinance, the actioncould not be maintained. The contention on behalf of the plaintiff-appellant on the appeal in the present case is that the former actioncould not be pleaded as barring the institution or the hearing of thepresent action. The decree in that action was not final inasmuchas it* was a case in which an appeal is allowed, and the decree wasin fact the subject of an appeal. The words of section 207 of'theCivil Procedure Code: “ All decrees passed by the court shall,subject to appeal, when an appeal. is allowed, be final betweenthe parties," were relied upon a6 supporting this contention and1 (1891) 2 C. L. R. 21,a (1918) S C. W. Rep. 286.
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also Balkishan and another v. Kiehan Laltl Nilvatu v. Nilvaru andothers,* especially the passage in the latter case: “ We considerthat when the judgment of a Court of first instance upon a particularissue is appealed against, the judgment ceases to be res judicata,and becomes res sub-judice.” To the contrary it was submittedon behalf of the defendant that what was meant by the language ofsection 207 was that the decree of the Court of first instance wasfinal till it was set aside on appeal. That the word “ Final ” isused as contrasted with “ Interlocutory " and the following passagefrom the judgment of Cozens-Hardy, L.J. in Marchioness of Huntlyv. Qaskell (supra) was cited: —
“It is urged that the judgment of the Scotch Court of Sessionis not a final judgment; but when the word * final * is used,as I think it is in some authorities with reference tojudgments, that does not mean, I apprehend, a judgmentwhich is not open to appeal, but merely * final ’ as opposedto ‘ Interlocutory A judgment is, in my opinion, notthe less an estoppel between the parties to the actionbecause it may be reversed on appeal to the House ofLords.”
If it had been necessary to make a holding between these conten-tions, as at present advised, I would hold that the decree of theDistrict Court was not final within the meaning of section 207 forthe reason that an appeal is allowed and an appeal had in fact beenpreferred. But I do not think I am called upon to decide thatquestion for the purpose of deciding this appeal. It was submittedagain on behalf of the plaintiff that the former action was notlis pendens in the Appeal Court inasmuch as the cause of action ”set out in the former action was not the same as the alternativecause of action upon which the present action was based, and thatit was essential that there should be an identity of causes of actionin the two actions to sustain a plea of Us pendens. For the defendantit was submitted that the cause of action in the former action wasidentically the same as in the present action; that in the languageof the interpretation clause of the Civil Procedure Code 11 cause ofaction ” is " the wrong for the redress of which an action may bebrought, and includes the denial of a right, the refusal to fulfil anobligation that an both aotions the wrong complained of by theplaintiff was one and the same, the non-payment of money due tohim for goods sold and delivered and moneys advanced to thedefendant. I am unable to say that I agree wholly with either ofthese contentions. The one view appears to tend to narrow downthe scope of the rule of res judicata while the other may result inextending it beyond its well recognized limits. If in the cases under1 7. L. R. 11 AU. 148.* 7. L. R. 6 Bom. 110.
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consideration now the Court had decided in the former actionthat the plaintiffs action failed because the transactions relied onby him had never taken place, that decision would, in my opinion,bar him from maintaining the present action, although he may setout the claim as due upon an account stated, and therefore upon adifferent contract to goods sold and delivered which alone was thecontract pleaded in the former action. The reason, as I conceive it,is that the former decision went to the root of the plaintiff’s claim,which' in both actions is based upon the transactions which are setout in the plaints in both actions, and which are the same. Butonce again I do not think it necessary to decide any of the questionswhich must necessarily arise if this appeal has to be decided on aplea of lis 'pendens alibi.
In my opinion the dispute between the parties turns upon asimple question, namely; whether the plaintiff having obtained adecree for the whole of the sum claimed and claimable upon thetransactions relied on by him in both actions, can maintain thisaction during the existence of that decree. In both actions he seeksthe same relief, that is, the payment of a sum of money upon certaintransactions. When he obtained the decree in his favour in theformer action the claim was merged into the decree upon whatevercause of action that decree may be actually founded. There isalso another way of putting the same reason. His causes of actionare alternative in the sense that the money is due either upon acontract for goods sold and delivered and moneys advanced, or,upon an account stated in respect of the same transactions. Heelected tc sue upon the former contract and had succeeded. It istherefore not open to him to assert the alternative cause of actionand once again claim a decree for the same sum. It would beunconscionable to decree the defendant to pay a debt twice over.It was submitted as an argument for the plaintiff that there was noprovision of our law which prevents him from maintaining two-actions simultaneously to recover the same sum of money. Evengranting the assumption which underlies that argument to becorrect, although I am not prepared to admit its correctness, theposition would .still be the same because as soon as he obtains adecree in one of those actions the other must fail.
I must, accordingly, dismiss the final appeal also with costs andaffirm the decree of the District Court.
Lyall Gkant J.—I agree.