075-NLR-NLR-V-41-ARULAMPALAM-et-al.-v.-KANDAVANAM.pdf
304
DE KRETSER J.—Arulampalam v. Kandavanam.
1939Present: de Kretser J.
ARUJ-.AMPAL.AM et al. v KANDAVANAM-136—C. R. Jaffna, 4,656.
Res judicata—Two actions pending—Decision of later action binding or. theearlier action—Agreement to abide by decision of one action.
A plea of res judicata would operate in bar of an action which wasinstituted before – the action the decision of which is pleaded in bar,provided the other conditions are satisfied.
^^PPEAL from a judgment of the Commissioner of Requests, Jaffna.
S.J. V. Chelvanayagam, for third defendant, appellant.
N.Nadarajah (with him N. Kumarasingham), for plaintiff, respondent.
Cur. adv. uu!r.
November 30, 1939. de Kretser J.—
The third defendant-appellant in this case had obtained a money decreeagainst the first and second defendants, and in execution thereof hadcaused the Fiscal to seize two lands on May 20, 1936. The present.plaintiff preferred claims thereto based upon a transfer in his favourdated May 7, 1936, from the first and second defendants. His . claimswere both dismissed, and as they were made in different Courts they weredismissed on different dates. He then brought these two actions, viz.,the present case on November'3, 1936, and the other case (No. 11,319)in the District Court of Jaffna on March 15, 1937. In each case theappellant took up the same position that the transfer had been executedin fraud of creditors.
On March 21, 1938, Counsel stated to the Court that the decision in theDistrict Court case would settle this case, and accordingly this case waslaid by and later relisted for trial. The decision in the District Courtcase was then pleaded as res judicata and that plea was upheld.
303
DE KRETSER J.—Arulrimpalam. v. Kandavanam.
It is admitted that it is exactly the same point now in dispute as was-raised in the District Court case, and that the issues are the same in bothcases and the evidence would be the same. But it is contended thatbecause this case was instituted before the decision of the District Courtcase therefore the plea of res judicata was not available.
Neither counsel had drawn my attention to what was in effect agreedupon between the parties in the lower Court on March 21. 1938, namely,that the decision in the District Court case should govern this case. Itseems to me that the learned Commissioner would have been justified inmaking his order on this ground alone.
Now, the doctrine of res judicata is based primarily on the policy thatit is in the interests of the State to have an end 'of litigation : interestreipublicae ut sit finis litium. It also takes into cognizance the maxim—Nemo debet bis vexari pro eadem causa. As stated in Halsbury (Vol. 13,p. 332, para. 464) “…. The true view seems to be that the legal
rights of the parties are such as they have been determined to be by thejudgment of a competent Court. But the conclusiveness of the deter-mination rests upon the same principles in each case. The doctrine ofres judicata is not a technical doctrine applicable only to records : it is afundamental doctrine of all Courts that there must be an end oflitigation.”
In Balkishan v. Kishan Lai1 the decision pleaded as res judicata wasgiven in a case which had been instituted later in point of time. The casewas referred to a Divisional Bench, and Justice Mahmood (with whomEdge C.J. and Straight J. agreed), said:—“The question relates to thescope of the maxim pendente lite nihil innovetur. That the maximgoverns alienations pendente lite cannot be doubted. Does it also relateto adjudications which have taken place during the pendency of onelitigation in another litigation which, though commency before, had notterminated when the present litigation was begun ?
“ So far as I am aware, this exact question has not been settled by anydefinitely authoritative decision in England or in India. I am thereforenot hampered by any case law on the subject, and feel myself free toadopt such views as I consider most consonant with legal principles.
“ It seems to me that the main object of the doctrine of res judicata isto prevent multiplicity of suits and interminable disputes betweenlitigants, ne autem lites immortales essent, dum litigantes mortales sunt.This saying of Voet is in accord with the maxims Nemo debet bis vexari pro .una et eadem causa, and the broader maxim Interest reipublicae ut sit finislitium.
“ This being so, the doctrine, so far as it relates to prohibiting theretrial of an issue, must refer not to the date of the commencement of thelitigation, but to the time when the Judge is called upon to decide theissue. For even in cases where the Judge has commenced the trial of anissue which is also an issue in a pending litigation, a final judgmentpronounced meanwhile in such previous litigation by a competent Court(the identity of parties and other conditions being satisfied), shouldoperate as res judicata preventing the Judge dealing with the later
111 All. 140.
S06DE KRETSER J.—Arulamyalam v. Kandavanam.
litigation from adjudicating differently. If this is not done, it seemsto me that the evil against which res judicata aims would not beremoved and the doctrine itself would be defeated.”
In the' case of Gururajammah v. Venkatakrishnama Chetti ' the samepoint came up for decision-before White G.J. and Davies J. It was heldthat the first suit was barred by the decision in the second suit, the Judgesapproving of the statement of law in the Allahabad case, that “ thedoctrine so far as it -relates to prohibiting the retrial of an issue mustrefer not to the date of the commencement of the litigation but to thetime when the Judge is called upon to decide the issue”. In the Madrascase too the earlier suit had been laid by pending the decision in the latersuit, and the Judges began their judgment by expressing the opinionthat it was. not open to one of the parties to go behind the judgment inthe latef- suit.
Nathan (Vol. iv.. p. 2153) refers to the case of Bertram v. Wood' inwhich de Villiers C.J. said :—“It is laid down in the Digest as a rule oflaw that a matter once adjudged is accepted as the truth—res judicatapro veritate accipitur. The meaning of the rule is that fhe authority ofres judicata induces the presumtion that the judgment upon any claimsubmitted to a competent court is correct, and this presumtion, beingjui-is et de jure, excludes every proof to the contrary.. The presumptionis founded upon public policy, which requires that litigation should notbe endless ….”.
• In fact the very term res judicata means that the matter in dispute hasbeen adjudicated upon previously. The rule that the rights of partiesought to be decided as at the date when an action was instituted cannotapply to every circumstance. Once the third defendant’s claim to havethe plaintiff’s deed set aside as fraudulent was adjudicated upon, thatclaim no longer existed or was available to him.
One might arrive at a most ridiculous situation otherwise ; for it isconceivable that contrary decrees might be passed in the two cases, andthat a third claim may lead to a third case. Which of the two earliercases could then be pleaded as res judicata ? All considerations thereforepoint to the correctness of the decision in the lower Court.
But it is said that a contrary view should be taken because of the caseof The Delta (1 Probate Div. 1875-6, p. 393). To begin with, that was acase "“where . th$ decision given in a foreign Court was invoked, and anumber of witnesses had to be examined with regard to the foreign law ;ancMhe English Court held that their evidence left it at least doubtfulwhether the judgment of the foreign Court would be regarded as resjudicata in the foreign country. The Court also found that the foreignjudgment had not been given on the merits of the ease but on matters ofform and therefore could not be relied upon as a bar. It did express theopinion that at the time when the suit was begun in England there wasno res judicata but only a lis alibi pendens. But they used that fact toemphasize that one party might have put the other to the election ofgoing on with one of the cases, and not having done so he ought not to beallowed to plead the decision in the other case as a bar.
1 24'Mad. 34.* 10 S. C. 177.
DE KRETSER J.—Haramanis Appu v. Wickremesinghe.
307
The case of Houston v. Marquis of Sligo ' was also relied on. In thatcase Pearson J. doubted that the decision in The Delta would apply inview of the existing practice, and decided the case on other grounds.Pearson' J. confessing that he was attracted by the argument that a pleaof res judicata was a plea in bar to the institution of an action and thatconsequently it could not succeed in a case brought before the laterjudgment was delivered. It is merely a passing opinion and it makes noappeal to me. It is a fact that the plea is generally based on a decisiongiven prior to the institution of an action, but that fact must not beallowed to cloud the question, nor in my opinion is it correct to say thatthe plea bars only the institution of a fresh action.
The appeal fails and is dismissed with costs.
Appeal dismissed.