BABAN APPU v. GUNEWARDENE

031-NLR-NLR-V-10-BABAN-APPU-v.-GUNEWARDENE.pdf


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Present: Sir Joseph T. Hutchinson, Chief Justice, andMr. Justice Wendt.
BABAN APPU v. GUNEWARDENE et al.
D. C., Galle, 8,159.
Res .judicata—Dismissal of action—Setting up same claim °n differentground—Civil Procedure Code, s. 207.
A party who has foiled in one action cannot afterwards set upthe same claim in another action between the same parties, andsupport- it on grounds which might have been put forward in thefirst action.v
Section 207 of the Civil Procedure Code makes a judgmentconclusive, not only as to matters actually pleaded, pnt in issue,and tried and decided, but also as to matters which might, and(according to the rules of the Code) ought to, have been pleaded,tried, and decided.
A
PPEAL by the first and second defendants from a judgment ofthe District Judge of Galle (G. A. Baumgartner, Esq.).
The facts and arguments are fully stated in the judgments.
i.
Bawa, for the first and second defendants, appellants.
A. St. V. Jayewardene, for the plaintiff, respondent.
Cur. adv. vult.
March ID, 1907. Hutchinson C.J.—
The plaintiff claims a declaration of his title to a piece of land.The first and second defendants denied his title, and #lso, amongother pleas, said that the plaintiff's claim was barred by the decreeof the^ District Court of Galle made on the 21st August, 1903, in aformer action between the same parties- In that former action,
1907.March 13.
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1907. No. 7,013, the present first defendant sued the present plaintiff forMarch 13. a declaration of his title to this same land, and by its decree theJluTCHitfsoN Court declared that the present first defendant was entitled to theC.J. land, and ordered the present plaintiff to be ejected therefrom.
The second defendant claims by purchase from the first defendantsince the date of that decree.
The plaintiff suggested six issues; the first and second defendantsagreed to those issues, but suggested some others, one of which waswhether the decree in action No. 7,013, D. C., Galle, is a bar to theplaintiff’s present claim. The record does not state that the plaintiffagreed to the issues proposed by these defendants, or that the Courtaccepted them. But on the 28th November, 1906, when the casewas called in, it is recorded that these defendants raised the prelimi-nary objection that plaintiff is barred by the decree in D. C., 7,013;arguments were heard on that objection, the plaintiff alleging thatin that action he was not represented by any legal adviser, and thatno issue whether he had obtained a title by prescription was goneinto, and that the decree was made per incuriam. The plaintiff infact wished to set up in this action a claim that he was entitledto the land by prescription—a claim which he might have set upin the previous action.
' The Court after hearing the arguments fixed the case for trial onthe other issues, without giving any opinion on the preliminaryobjection. Next day the defendants’ proctor applied to the Courtfor a ruling forthwith on the issue which had been argued the daybefore, quoting in support of his application section 147 of the CivilProcedure Code. The Judge after hearing both parties took timeto consider the application, and on the 28th December/ 1906, herefused it. The first two defendants now appeal against that refusal.
The appellants rely on section 207 of the Civil Procedure Codeand the explanation appended to that section, which is that “ every
right to relief of any kind which can be claimed, set up, or put
in issue between the parties to an action upon the cause of action forwhich the action is brought, whether it be actually so claimed, setup, or put in issue or not in the action, becomes, on the passing ofthe final deoree in the action- a res adjudicata, which cannot after-wards be made the subject of action for the same cause between the. same parties. ” The right to this land was claimed in the formeraction, and a final decree was passed in that action declaring thepresent first defendant entitled to that right. The same right is•again claimed in this action by the party against whom the decreein the former action‘was passed, against the party in whose favourit was passed. I do not see how it is possible to say that this claimis not a res adjudicate.
The District Judge held that the issue of law put forward cby thedefendants would not be decisive of the case, and he thereforethought that he was not bound by section 147 to decide that issue
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first. He so held, contrary to his own opinion as to the right190?
construction of section 207, because he thought he was bound toMarch
follow a judgment of Layard C.J. and Moncreiff J. given on 11th HutchinsonFebruary, 1903, in a case No. 5,905 of the Galle District Court.
We have looked at the record of that judgment, which is notreported. It is very short. Layard C.J. says: “ A reference to thejudgment in District Court, Galle, 1,245, shows that the case wasdismissed on the ground that the defendant had failed to prove hiscause of action, namely, that he had been ousted from the premisesby the defendant in that action. The judgment did not decide thequestion of title as between the plaintiff and the defendant in thatcase, and consequently cannot be pleaded as res judicata by thedefendant in this case, for it did not decide nor purport to decide thequestion of title. ” And Moncreiff J. concurred.
That judgment is, I think, founded on a misapprehension of fact.
The plaintiff in the earlier action, 1,245, claimed a declaration thathe was entitled to the land: the defendants denied his right, and setup their adverse title; the Court found that the defendants hadproved their title; and the decree dismissed the plaintiff's action.
That decree might be set aside or varied by an order of a competentCpurt in proceedings taken for that purpose; but until set aside orvaried, it was final between those parties.
The plaintiff in that action afterwards, in action 5,905, made thesame claim against the same defendants and sought to support it byan allegation that at the date of the decree in the former the defen-dants’ title,.which the Court had held to be good, was bad; thedefendants’ title was under a certain deed of conveyance, and theplaintiff ribw alleged that that deed was fraudulent. The mainissue to be tried in the second action was therefore whether that deedwas fraudulent. But that issue might have been raised in the formeraction. It was therefore after the decree in the former action ares adjudicate. The judgment of Layard C.J. was, I think, basedon a mistaken belief that the plaintiff's claim was for damagesbecause he had been ousted; whereas it was for a declaration of histitle to the land and only. incidentally for damages. His actionwas dismissed by the District Court, his main claim failing, becausethe defendants succeeded in the contest as to title. The question ofouster would only have been material if he had succeeded on thecontest as to title. The judgment of Layard C.J. is no authorityfor the proposition that a party who has failed in one action canafterwards* set up the same claim in another action between the*same parties, and support it by reasons which might have beenurged in the first action. I think, therefore, that the District Judgeought to have decided the issue of law raised by the appellants infavour *of the appellants, and ought to have dismissed the action;and our judgment should be that the action be dismissed, and thatthe plaintiff should pay the defendants' costs in both Courts.
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1907.
March 13.
Wendt J.—
This is an action to vindicate from the defendants a pared, of landwhich plaintiff claims to be his exclusive property on a title acquiredmany years ago, and of which he alleged that defendants are inunlawful possession since April, 1904. The first defendant alonesets up title against the plaintiff, and he claims the whole land on aconveyance of 1878. The other defendants claim under the first.Besides setting up title, the defendants plead in bar of the actionthe decree passed in August, 1903, in an action No. 7,013, DistrictCourt, Galle, in which the first defendant, Gunewardene, and twoothers sued the present plaintiff, Baban Appu, and others to recoverthe land on the strength of the title now pleaded by defendants.Baban Appu set up his own title, and his co-defendants disclaimed.At the trial of that action judgment was given in Gunewardene^favour, declaring his title to the land, and ordering Baban Apputo be ejected. He resisted the execution of that decree, but wascommitted to prison, and Gunewardene put in possession, and thatis apparently the plaintiff’s present cause of action.
On the trial day of* the present action a number of issues wereagreed upon, amongst them an issue, No. 10, as to'whether the decreeNo. 7,013 and a certain earlier decree, which need not be partic-xilarized, were a bar to plaintiff’s claim. This issue was discussed as apreliminary matter, but the Court without deciding it adjourned thehearing so as to try the other issues as well. Next day defendantsmoved the Court for an immediate ruling on the tenth issue, and thelearned District Judge made order on a later day holding the decisionof the plea of res judicata depended on matters still to be tried, and hetherefore formally refused to rule on the tenth issue apart from theother issues. He considered himself bound so to- hold by thedecision of this Court in District Court, Galle, No. '5,905 (I) which Ishall presently discuss.
Respondent’s counsel before us took a preliminary objection onthe ground that no appeal lay against such an qrder made in thecourse of the trial. But he admitted that the defendant’s plea, ifupheld, would be decisive of the whole action, and as it appeared taus that all the material necessary for the right decision of that pleawas on the second, we over-ruled the objection.
Now our law of res judicata, as laid down in section 207 of the Codeof Civil Procedure, is very strict. The whole object of the Code isto discourage a multiplicity of actions and to make each action,once begun, absolutely decisive of the rights of parties on respect ofthe subject-matter. Section 207 accordingly makes the judgmentof the Court conclusive not only as to matters actually pleaded, putin issue, and tried and decided, but also to matters which might, and(according .to the rules of the Code) ought to, have been'pleaded(1) 5. (7. MinFebruary 11. 1903.

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tried, and decided. For example, suppose a man has title to apiece of land from two sources, A and B. He brings an action ontitle A and is defeated; he cannot afterwards sue his defendant ontitle B. Or, if he is sued in ejectment, and sets up title B only, andis beaten, he cannot thereafter assert title A against his adversary.This is the effect, as I read it, of the explanation to section 207,
which says that ‘ every right of propertywhich can be
claimed, set up, or put in issue between the parties to an action uponthe cause of action for which the action is brought, whether it beactually so claimed, set up, or put in issue or not in the action,becomes on the passing of the final decree in the action a res adjudi-cata, which cannot afterwards be made the subject of action forthe same cause between the same parties/1 Consequently such adecision as that in District Court, Kandy, No. 90,099, would not nowbe possible, where the plaintiff claimed the incumbency of a BuddhistVihare on a deed executed by one Batanapala Unnanse, theadmitted former incumbent (1). Being defeated, plaintiffs suedagain, claiming .the incumbency as the sole surviving pupil ofBatanapala’s tutor and predecessor, Mahalla Sobhita (2). It washeld that the judgment in the former action was no bar to the newclaim. (The decision is not reported.)
Plaintiff concedes that he has acquired no new right to the landsince case No. 7,013 was decided, but I understand him to say thatat- that date he had a prescriptive title, which was never tried ordecided against him. That clearly is a “ right of property, M whichwould have been a good defence, which therefore ought to have beenset up, and which is now conclusively negatived by the decree in theappellant V favour.
The case No. 5,905, upon which the District Judge relies, aroseunder the following circumstances. One Cassim Lebbe claimedcertain land by virtue of an execution sale in 1872 against theadmitted original owner Dona Ana. His adversaries claimed undera deed of donation from Dona Ana dated 1871. Cassim Lebbe firstsued them in action No. 1,245, and they pleaded their earlier title,and, alleging a continuous possession thereunder, denied having* ousted plaintiff. At the trial plaintiff sought to attack the donationas a fraud on creditors, but the'Court refused to settle that issue,
* and the only issues tried were: (i.) Did Dona Ana execute thedonation deed? (ii.) Did defendants oust plaintiff? The firstwas found in the affirmative and the second in the negative, andthereupon ’the action was dismissed. Subsequently one Jansz, *a creditor of one of the successful defendants, seized the land inexecution against her, and Cassim Lebbe's claim havings been dis-allowed, he sued Jansz under sectioja 247 of the Code (action No.5,905) tp have his title declared. Jansz pleaded the decree No. 1,245
(1) (1881) 4 5. G. C. 191.■(2) W.cndt 25.
1907.
March 13
Wendt J
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1907.
March 13.
Wendt J.
in bar, and the District Court upheld the plea and dismissed theac&on. Cassim Lebbe appealed, and this Court on 11th February,1903, reversed the dismissal. Layard C.J., with whom Moncreiff *J.concurred, said: “ A reference to the judgment in District Court,Galle, No. 1,245, shows that the case was dismissed on the groundthat the plaintiff had failed to prove his cause of action, namely,that he had been ousted from the premises by the defendant in thataction. The judgment did not decide the question of title as betweenthe plaintiff and the defendant in that case, and consequentlycannot be pleaded as res judicata by the defendant in this case, forit did not decide, nor purport to decide, the question of title. ”With unfeigned respect for the learned Judges who decided that case,
I must say that I cannot subscribe to their decision. It wouldappear that the question of title was in issue in the older action; atany rate, the claim for the declaration of plaintiff’s title could failonly on the assumption that parties were agreed that plaintiff hadtitle, and that defendant only denied having interfered with it,which interference plaintiff had failed to prove. If the title wasdenied, and defendants set up their own title, it would have beenincumbent on the Court to try and determine the question of title,notwithstanding that defendants had not ousted plaintiff, especiallyif, while denying such ouster, the defendants admitted that theywere in adverse possession,'and had been from a.date anterior evento plaintiff’s acquisition or title. This probably was what defendantsin action No. 1,245 did allege. Possibly the decision in case No. 5,905may be supported on the law of res judicata as it stood prior to theenactment of the Code of Civil Procedure. Certainly the judgmentmakes no mention of section 207, and Jihere is nothing to showthat the Court’s attention was drawn to it. But since the Code,the plaintiff’s title was a “ right of property, ” and also a “ rightof relief,” which could have been claimed or set up in his claim forpossession of the land upon the cause of action, for which actionNo. 1,245 was brought, and the final judgment dismissing that actionrendered that title a res adjudicata against the plaintiff which hecould’ not agitate afresh.
The case No. 5,905 differs from the present action in the circum-stances that the decree relied upon as. an estoppel was there a decreefor the defendants, while here it was a decree for the plaintiff.Whatever may be said in favour of a plaintiff with two titles to landbeing allowed first to assert the one and then the other, it cannot-reasonably be contended that a defendant when sued iq ejectmentmay first set up one of. several defences he possesses, and afterwards,when sued again, set up another of them; or, what comes to thesame thirfg, himself immediately attack his successful adversary ina new action, setting up the matter of that second defence as aground of claim. That is what the present plaintiff seeks tovdo, andin my opinion he cannot be permitted to do it.
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Plaintiff’s counsel alleged that the several judgments obtainedagainst his client were founded far back on a fraudulent partitiondecree of many years ago, and that each judgment against himmerely relied on its predecessor, and that his claim, to the land hadnever been tried on evidence. That fraudulent decree, however,holds good until it is reduced in a properly constituted proceeding,and plaintiff, cannot attack it incidentally in an action like thepresent. But, assuming he could, how about the subsequentdecrees, which although based on the partition decree, were passedin plaintiff’s presence and after he had been fully heard? Theywill not fall with the cutting away of their foundation, but will ineach instance afford ground for an estoppel. Similar fraud is notalleged against them.
For the reasons I have given I think the appeal should be allowed,the plea of res judicata upheld, and plaintiff’s action dismissed withcosts in both Courts.
Appeal allowed.
♦
1907.
March. 13.Wendt J.