APPUHAMY v. MUDIYANSE et al

061-NLR-NLR-V-39-APPUHAMY-v.-MUDIYANSE-et-al.pdf


Appuhamy v. Mudiyanse.
221
1937Present: Soertsz J. and Fernando A.J.
APPUHAMY v. MUDIYANSE et al.
194—D. C. (nty.) Nuwara Eliya.
i,is alibi pendens—Actions undpr section 247 of the Civil Procedure Codepending—Subsequent action rei vindicatio against same defendantsSection 247 actions withdrawn—Right to maintain action rei vindicatio.In two actions Nos. 11,980 and 11',979 of the Court of Requests, NuwaraEliya, the present first plaintiff and the present second plaintiff respectivelysued under section 247 of the Civil Procedure Code one RamanathanChetty, who had seized this land on a writ against the present defendant,to have it declared that it was not liable to seizure under that writ andthey made the present defendant a party alleging that he was in wrongfulpossession of their shares of land and praying that they be declaredentitled to those shares and that the defendant be ejected therefrom.
While those actions were pending the plaintiffs instituted the presentaction rei vindicatio in respect of the same land. On May 8, 1936, thedefendant filed answer pleading that the plaintiffs were barred frommaintaining the action in view of the cases pending in the Courts ofRequests. On May 12, 1936, the plaintiffs’ proctor moved in the Courts ofRequests cases to withdraw them as against the present defendant,and to be allowed to bring a rei vindicatio action.
These motions were allowed, the proctor for defendant reserving any' objection he may have •“ to the connected District Court case ”.
Held, that the plaintiffs were not barred from maintaining the presentaction.
Annamalay Chetty v. Thornhill (34 N. L. R. 381) referred to.
I
N C. R. Nuwara Eliya, 11,980, the first plaintiff sued the presentdefendant and one Ramanathan Chetty to have it declared that a
certain land was not liable to be seized under a writ against the defendant.The second plaintiff had instituted a similar action, C. R. Nuwara Eliya,11,979, against the defendants. While those actions were pending, thetwo plaintiffs instituted a rei vindicatio action in respect of the same landon February 8, 1937. The defendants filed answer on May 8, 1937,pleading inter alia that the plaintiffs were barred from maintaining thepresent action in view of the Court of Requests’ cases. Thereafter theplaintiff’s proctor moved .in the Court of Requests’ cases to withdrawthem as ag;ainst the present defendant and to be allowed to. bring a reivindicatio action. These motions were allowed, the Court minutingthat the proctor for the defendant “ reserves any objection he may have
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Appuhamy v. Mudiyanse.
for the connected District Court case On the date of trial variousissues of law were framed. The learned District Judge held in favour ofthe plaintiffs and the defendant appeals from that order.
H. V. Perera (with him N. Gratiaen), for the defendant, appellant.—Under the Civil Procedure Code, 1889, only one action could be brought.The plaintiff in that action must go on with his case. If there are twoactions the second cannot have a better fate than the first.
LSoertsz J.—What is the position if he withdrew the action because hehad instituted another action ?]
Section 406 gives the conditions under which an action may be with-drawn. if no permission is granted, the plaintiff has to pay costs and hecannot hring a further action. (S. P. A. Annamalay Chetty v. Thornhill *.)There the learned Judges say that a judgment-debtor need not be a party toa 24? action. The plaints in the Court of Requests’ cases show that theywere not merely 247 actions. Further, if the cases had been withdrawnwithout liberty to bring another action, then this action is barred.
This action is not an action subsequent to the Court of Requests’actions, but one instituted before the withdrawal. The permission towithdraw an action does not cover a case which has been instituted,before. (Shidramappu Muttappa v. Mallappu Ramachandappa2.) The-second must fall within the permission granted.
The Privy Council held that two actions could be brought, but one-action should be stayed and generally the latter one.
[Soertsz J.—Suppose the first action failed on . the ground of registra-tion, cannot the second action go on ?]
That stage was reached in the Annamalay Chetty v. Thornhill
There is no non-suit to-day. We have to consider the legal effect andnot the words used. Section 207 says that a plaintiff should not be' non-suited.
The provisions of section "406 are nugatory if a person is allowed to filea plaint when there is already a plaint filed with an irregularity and thislatter is withdrawn after the filing of the former.
(Fernando A.J.—Would it not come within the maxim nemo debetbis vexari.'JYes, it does.
M. J. Molligoda (with him P. A. Senaratne), for the plaintiff, respond-ent.—The appellant contends that the causes of action are identical, butthe Court of Requests’ cases were the result of claim inquiries. In suchcases the judgment-debtor need not be a party. No decree can beentei’ed against him. (Muppurala v. Siddaram‘.)
[Fernando A.J.—The case Sinnatamby v. Ramanathan5 is against you-IBut Kuda Banda v. Dingiri AmmaQ is in my favour.
The judgment-debtor is not affected by the first action. In the Courtof Requests’ cases the action against the second defendant only waswithdrawn. (Fernando v. IsmaiV.)
The present action was a rei vindicatio one.
i (1931) 33 JN. L. R. 41* (1930) 1 L. S. 5S Bom. 207.
» (1932) 34 N. L. R. 381.
4 Tam. SO.
2 Bat. 38.
(1911) 14 N. L. R. 145 at 14G,.-
• (1927) 30 N. L. R .447.
223
SOERTSZ J.—Appuhamy v. Mudiyanse.
H. V. Perera, in reply.—There was a claim against the judgment-debtor in the Court of Requests. If a decree had been entered againsthim, this action could not have been brought.
Cur. adv. vult.
June 14, 1937. Soertsz J.—
In this action the plaintiffs sought to be declared the owners of theland referred to in the schedule to the plaint, and they alleged that thedefendant is in forcible possession of it from July, 1935. In his answer,before dealing with the merits, the defendant contended as a matter oflaw that the plaintiffs could “ not have and maintain this action, thecause of action referred to being already the subject-matter of two actionsNos. 11,979 and 11,980 of the Court of Requests of Nuwara Eliya”. Incase No. 11,979, the present second plaintiff and in case No. 11,980 thepresent first plaintiff sued under section 247 of the Civil Procedure Code,one Kamanathan Chetty who had seized this land on a writ against thepresent defendant, to have it declared that it was not liable to seizureunder that writ, and they made the present defendant, a party allegingthat he was in wrongful possession of their shares of the land and prayingthat they be declared entitled to those shares, and that the presentdefendant be ejected therefrom.
This answer was filed on May 8, 1936. On May 12, 1936, the plaintiffs’Proctor submitted motions in the two Courts of Requests’ cases, askingto be allowed to withdraw those cases as against the present defendantonly, and to be given permission to institute a rei vindicatio action againsthim. These motions were allowed on May 15, and the Commissionermade a journal entry that “ Mr. Modder reserves any objection he mayhave for the connected District Court case ”.
The present case came up for trial on September 11, 1936, and on thatday seven issues of fact and four issues of law were framed and the casewas adjourned for September 30, 1936. On that day the issues of law werediscussed, and on October 10, 1936, the District Judge delivered his orderin favour of the plaintiff. The present appeal is from -that order.
The issues were these : —
Can plaintiffs maintain this action, the same having beeninstituted during the pen'dency of 11,979 and 11,980 ?
Plaintiffs’ claims 81 and 88 having been dismissed, was their onlyremedy an action under section 247 of the Civil Procedure Code ? Ifso, is the present action maintainable ?
Was permission granted by the Court to withdraw C. R. 11,979and 11,980 with permission to institute the present action ? Even ifsuch permission was granted is that permission of any avail in law tothe plaintiffs ?
Plaintiffs having withdrawn C. R. 11,979 and 11,980 against thedefendant, is he precluded thereafter from, maintaining the presentaction against them ?
. I did not understand counsel for the appellant to press the point raisedin issue No. 2. The question raised in that issue does not arise betweenthe plaintiffs and this defendant. His contention was that once an actionis instituted it must be proceeded with till a decision is obtained, unless
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SOERTSZ J.—Appuhamy v. Mudiyanse.
it is allowed to be withdrawn under section 406 of the Civil Procedure Codewith liberty to institute a fresh action,.or tinless it abates. In any ofthose events, there is a" termination of the action. In this instance theplaintiffs were allowed to withdraw the two C. R. cases with liberty toinstitute a rei vindicatio. action ; that this must be understood to be theinstitution of a fresh action and not the bringing forward of an actionthat had been instituted three months before permission to with-draw the two Court of Requests’ cases as against the present defendantwas granted. He also contended that the institution of the presentcase in February, 1936, was of no legal consequence because there werealready pending two cases involving the subject-matter of the presentcase. It had no significance except that it encumbered the roll.
So far as Courts in Ceylon are concerned there is the highest possibleauthority to support the view that the fact that one action is pending inrespect of a cause of action is no bar to the institution of another action inrespect of that same cause of action. That was exactly what happenedin £>. P. A. Annamalay Chetty v. Thornhill1 and Lord Thankerton indelivering the opinion of the Judicial Committee of the Privy. Councilheld that even a decree in one action from which an appeal was pendingwas no bar to a second action* for “ it is open to the Court to see that theappellant does not get decree twice over for the same sum ”. If, therefore,a decree in one case so long as it is under appeal, cannot support a pleaof res judicata against a second action on the same cause of action, itnecessarily follows that the fact that an action is pending already willnot bar another action being instituted on the same cause of action.In regard to this question of lis alibi pendens I find Spencer Bower in histreatise on res judicata summarizing the cases cited by him on the pointas follows (see page 213) :—-“The practice of the Courts in dealing with alis alibi pendens is governed by the same considerations of public policyas those which lie at the root of the doctrine of res judicata. In both cases'alike, our Jurisprudence is actuated by the principle nemc> debet bis vexaripro una et eadem causa though of course, the theory of merger—transit inrem judicatam—has no application to questions of lis alibi pendens..Fending litigation, ex in termini, excludes the idea of its termination byjudicial decision, but since concurrent proceedings on the same question,,or with the same object may occasion a bis vexatio hardly less oppressivethan a proceeding which seeks to reagitate a question determined by aformer judicial decision, the Courts …. have -always exercisedtheir inherent discretionary jurisdiction to prevent abuses of the technicalright of a party to litigate before different tribunals at one and the sametime if that jurisdiction is invoked at a reasonably early stage, but nototherwise ”. Mr. Perera, however, argued that the position in Ceylonis different in view of section 33, 34, and 406 of the Civil, ProcedureCode. In another stage of the case Annamalay Chesty v. Thornhill JusticeGarvin summarizes a similar argument by Mr. Perera in these terms1:“ Counsel frankly admitted that if the question were to be determined bythe general rules of the law res jvdicctta his objection would not besustainable. But he contends that there in Ceylon we have a statutoryrule in accordance with which upon the entry of a decree dismissing aJ (1931) 33 X. L. R. 41.* (1932) 34 N. X. R. 381 at p._ 385
SOERTSZ J.—Appuhamy v. Mudiyanse.
225
plaintiff’s action no matter upon what ground—^except for want o£jurisdiction—every right claimed or claimable in respect of the causeof action for which the action was brought becomes a res judicata and,therefore, operates as a bar to a second action based on the same causeof action
In this case Mr. Perera contended that when the plaintiffs were allowedto withdraw the two Court .of Requests’ cases, it must be assumed thatthe Commissioner of Requests, dismissed those actions as against thisdefendant subject to the condition that a fresh action would be instituted,and that a strict compliance with that condition was necessary for thevalid emergence of another action. In this case there was no suchcompliance inasmuch as the action now relied upon is not a fresh actionbut an action that was already pending. The answer to this argument,as I conceive it, is that the Privy Council has ruled in the case alreadyreferred to that the fact that one case is pending is no bar to the institutionof a second action in respect of the same cause of action. But Mr. Pererasuggested that the Privy Council was directing their attention to theparticular facts of the case before them and the bearing of section 207 ofthe Civil Procedure Code on that case, and that they did not considerthe effect of sections 33 and 34 of the Code. This is hardly probable.But apart from that sections 33 and 34 of the Civil Procedure Code are not,in my opinion, inconsistent with that proposition. Section 33 only saysthat “ every regular action shall …. be so framed as to affordground for a Anal decision upon the subjects in dispute, and so to preventfurther litigation concerning them ”. Similarly, section 34 lays down thatthe whole claim which a plaintiff is entitled to make in respect of thecause of action shall be included.
These sections do not prohibit the bringing of more than one action,and as pointed out in the passage I have already cited from SpencerBower, so far as the general law of res judicata and the kindred topics go,a party has the technical right to litigate before different tribunals atone and the same time ! But, of course, the technical right is subject tothe control of the Court to prevent its process being abused. In thisinstance, there is no possibility of that right being abused because inconsequence of the withdrawal of the two Courts of Requests’ cases againstthe defendant he can hardly say that he is exposed to a bis vexatio.
In regard to Mr. Perera’s contention that the plaintiffs were givenpermission to institute a fresh action and not to proceed on with thepresent action, that is literally correct. But from the context it seemsclear that although the plaintiffs’ proctor in his motions asked that he beallowed to withdraw the Courts of Requests’ cases with liberty to institutean action rei vindicatio, he really had in view this action which wasalready pending at the time and was an action rei vindicatio. That, atany rate, is how the defendant’s proctor appears to have understood itfor he specially asked-the Court to note that “he reserves any objectionhe may have for the connected D. C. case ”.“ The connected D. C. case ”
was manifestly the present action. Quite apart from that view of thematter, in my opinion, the fact that the plaintiffs had been given .permis-sion to file a fresh'action did not preclude them from proceeding with thepresent action. If their proctor had explicitly stated what, as I have
Molagoda v. Gunaratna.
^already observed, appears to be implied by Ms motions in the light ofwhat transpired in Court, namely, that he was withdrawing these Courtsof Requests’ actions against the present defendant in order to proceedwith the present action against him, I feel confident that that applicationwould have been allowed, for it was the obvious and most convenientcourse. Mr. Perera concedes that the dismissal of the present action willnot prevent the plaintiffs from bringing another action rei vindicatio interms of the permission given them. This admission reveals the captiousnature of the argument on behalf of the appellant.
As I have already held there was nothing to prevent this action existingside by side with the two Courts of Requests’ cases. Once the plaintiffsobtained permission to withdraw those cases with liberty to institute arei vindicatio action, even if we assume that the plaintiffs and the defend-ant and the Court contemplated a fresh action, it was open to theplaintiffs either to institute that fresh action, or to proceed with the actionalready pending. The plaintiffs have chosen the more convenient courseof going on with a case already on the roll in which a final adjudicationcan be .reached on all the matters in dispute between the parties. Thereis no likelihood at all that the plaintiffs will institute a fresh action onthe permission granted by the Court. . That would be a perfectly futileproceeding and if the plaintiffs indulge in- it, the Court can exercise itsundoubted jurisdiction to prevent such an abuse.
I would, therefore, dismiss the appeal with costs and send the caseback for trial on the issues of fact.
Fernando A.J.—I agree.
Appeal dismissed.