051-NLR-NLR-V-16-APPUHAMY-et-al-v.-BANDA.pdf
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Present: Lascelles C.J. and Pereira J.
APPUHAMY et ah v. BANDA.
245—D. C. Kandy, 21,544.
Res judicata—Action for declaration of title—Failure of. defendants toclaim in reconvention—Compensation for improvements—Defend-ants not barred from bringing separate action for compensation.
A defendant in a Distriot Court action who had neglected to setup a claim in reconvention is not barred from bringing a separateaction to enforce the claim.
In an action in the District Court between the same parties thepresent defendant was declared entitled to certain lands. Theplaintiffs, who were defendants in the former action, thereuponbrought this action for compensation for improvements effectedby them to the lands when they were in occupation.
Held, that plaintiffs’ failure to claim the compensation in theformer action by way of reconvention was no bar to the presentaction.
facts appear from the judgment.
Bawa, K.C. (with him Wadsworth), for the plaintiffs, appel-lants.—The failure of the plaintiffs to claim compensation forimprovements in the former action, in which they were defendants,is no bar to the present action. They were not bound in thataction to set up any claim in reconvention at all. The CivilProcedure Code only requires a defendant to set up claims inreconvention in Courts of Bequests (see section 817), and that tooonly in certain cases—in actions on contract. A claim in recon-vention is practically a new cause of action, .and a separate actioncan always be brought. Section 207 does not apply to cases wheredefendant can bring a separate action. If the Legislature wantedto limit the rights of defendants to bring separate actions on anyclaim which they might have set up in reconvention, it would havespecially enacted to that effect in clear terms.
No appearance for the respondant*.
Cur. adv. vult. •
November 15, 1912. Lascelles C.J.—
The defendant in this action was declared in action No. 19,423(in which the plaintiffs in this action were the defendants) to beentitled to certain lands, and he obtained an order placing him inpossession of the property.
1912.
1912.
XiA8GHLL£8
O.J.
Appuhamyv. Banda.
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The plaintiffs now sue the defendant for compensation for improve-ments effected by them to the lands when they were in occupation,and the learned District Judge has ruled that their claim is resadjudicata under section 207 of the Civil Procedure Code. Thequestion is whether the decision of the learned District Judge issound.
In considering this question it is to be noticed that no question ofjus retentionis arises. The plaintiffs have been ejected from the land,and their present claim is in no way dependent on their occupationof the land. The learned District Judge has construed section 207of the Civil Procedure Code to mean that if the ’ defendant in anaction fails to claim in reconvention any relief which he might haveclaimed in this way, he cannot afterwards claim such relief by meansof a separate action.
It is clear to me that it was not the intention of the Legislature tolay down any such rule with regard to the procedure of the DistrictCourts; for in Part X. of the Code, relating to the special procedurefor Courts of Requests, we find a section (section 817) providing thatif a defendant in an action for breach of contract neglects to interposea claim in reconvention consisting of a cause of action in his favourfor a like cause which might have been allowed to him at the trial,he is precluded from afterwards maintaining an action on the claim.
If the general rule were that a defendant who had neglected to setup a claim in reconvention in an action could not afterwards bringan action to enforce the claim, it is inconceivable that the Legislatureshould have enacted section 817,’ applying this rule specially toCourts of Requests, and even then limiting the application of therule to actions for breach of contract.
The learned District Judge bases his decision on the use of thewords “ set up ” in the explanation to section 207, and he considersthat this expression is intended to apply to the case of a defendantin contradistinction to the word “ claimed,” which applies to thecase of a plaintiff.
But this, I think, is making too much of the expression. Thewords'” set up,” after all, are equally applicable to a plaintiff’s claimand a defendant’s counter-claim. If it had been the intention of theLegislature to lay down a rule so far-reaching in its effect, it isreasonable to suppose that the intention would have been distinctlyexpressed, and that at least there should have been a specificreference to claims in reconvention.
For the foregoing reasons, I .am of opinion that the judgmentmust be reversed; and the case remitted to the District Judgefor trial in due course, the appellant having his costs of theappeal.
Perejba J.—I agree.
Appeal allowed.