HOWARD C.J.—Banda v. Banda.
1941Present: Howard C.J. and Soertsz J.
BANDA v. BANDA et al.
13—D. C. Kandy, 21.
Res judicata—Two sets of defendants—Conflict of interest between defendants—Final decision.
Where there were two sets of defendants in a case between whom therewas a conflict of interest and it was necessary to decide the conflictin order to give the plaintiff the relief he claimed and where the questionbetween the defendants was finally decided,—
Held, that the judgment operated as res judicata between the defend-ants inter se.
Senaratne v. Perera (26 N. L. R. 225) referred to.
Appeal from a judgment of the District Judge of Kandy.
Cyril E. S. Perera (with him Gilbert Pqrera), for the defendants,appellants.
H. V: Perera, K.C. (with him S'. R7 Wijayatilake), for the plaintiff,respondent.
Cur. adv. vult.
June 18, 1941. Howard C.J.—
The only question that arises in this case is whether the learned DistrictJudge was right in holding that the decree in D. C. Kandy, 36,732, is resjudicata as to the title whether by prescription or otherwise of the plaintiffand defendants. D. C. Kandy, 36,732, was instituted in 1928 by oneA. M. Banda against the plaintiff-respondent for middle lot A in plan D 1.The defendants-appellants were added as defendants in the 1928 case andin their answer claimed lots C and D by prescription. There was also afifth added defendant who claimed lot: B. Although claiming title tolots C and D'by prescription the appellants disclaimed title to lot A whichformed the subject-matter of the action and prayed that they might bereleased therefrom. One of the issues for trial was the question as towhat rights the parties had acquired by prescription to the land called
HOWARD C.J.—Banda v. Banda.
Panwatta alias Kotikabaddewatta which it was admitted was constitutedby lots A, B, C, and D. In his judgment the District Judge stated thatthe plaintiff and the added defendants including the defendants-appellantsin this case are on one side, while the defendant is on the other. Also thatthe contest was whether the middle block, that is to say, the land calledPanwatta consisting of lots A, B, C, and D belonged to the plaintiff and theadded defendants or whether it belonged to the defendant. The DistrictJudge dismissed the action with costs. The first to fourth added defend-ants, appealed against this decision and in their petition of appealsubmitted (a) that they were wrongly made parties to the action by theDistrict Judge of Kandy as there was no quarrel between them and thedefendant and (b) that they had acquired a title by possession. Theappeal was dismissed and the judgment of the District Judge affirmed.
In the present case the plaintiff claimed that the defendants should beejected from the land described in the schedule lo the plaint of which lot Din plan D 1 formed a part and pleaded, moreover, that the matter wasres judicata in consequence of D. C. Kandy, 36,732. It was agreed at thesettlement of issues that the dispute was only as to lot D. Counsel havereferred us to various decisions both of the English and local Courts. Inthis connection I may observe that in his judgment in Samichi v. Pieris 'Lascelles C.J. stated that there was nothing in the various sections ofthe Civil Procedure Code dealing with res judicata inconsistent with theprinciples followed by the English, Indian and American Courts. Theprinciples governing the application of the rule of res judicata wasconsidered in the Privy Council case of Mt. Munni Bibi and another v.Tirloki Nath and others'. After laying down the general principle that adecision is not res judicata’as between co-defendants, Sir George Lowndesstated that this principle was subject to exceptions and proceeded to setout the three conditions which the Board adopted as the correct criterionin cases where it is sought to apply the rule of res judicata as betweenco-defendants. Those conditions are as follows: —
There must be a conflict of interest between the defendants
It must be necessary to decide this conflict in order to give the
plaintiff the relief he claims ; and
The question between the defendants must have been finally
In formulating these three conditions Sir George Lowndes was apparentlyfollowing the law as laid down in the following passage from the judgmentof the Vice-Chancellor (Sir James Wigram) in Cottingham v. Earl ofShrewsbury = ;—
“ If a plaintiff cannot get at his right without trying and deciding acase between co-defendants the Court will try and decide that case, andthe co-defendants will be bound. But if the relief given to the plaintiffdoes not require or involve a decision of any case between co-defendants,the co-defendants will not be bound as between each other by anyproceeding which may be necessary only to the decree the plaintiffobtains. ”
110 N. L. R. 257.
67 E. R. at p. 63-5.
2 A. I. R. 1931 P. C. 114.
HOWARD C.J.—Banda v. Banda.
The question of the right of a Court to investigate claims by one co-defendant against another was also considered by the Court of Appealin Kenan v. CrawfordIn this connection I would refer to the followingpassage from the judgment of Jessel M.R. : —
“ What right has a Court of Justice to investigate a claim by titleparamount by one co-defendant against the other ? I am not aware ofany. The answer is, if you wish to assert these claims you must assertthem in a proper action. But it was said, and the Vice-Chancelloracceded to that view, that whatever decision principle might call on usto make, authority was the other way. I certainly was surprised tohear it; and I was not surprised to find when the authorities werereferred to that they were authorities of a totally different class. Theauthorities referred to were of this sort: —That where a plaintiff ob-tains relief against one or more defendants, and there are subordinatequestions either necessary to be gone into to work out that reliefcompletely for the benefit of the plaintiff, or necessary to adjust therights of the defendants consequent on the relief so obtained by theplaintiff, the Court may by inquiries in Chambers work out theequities between the co-defendants. But there is no case produced inwhich any such inquiries were directed where the plaintiff’s case whollyfailed. ”
The authorities on the application of res judicata were given carefulconsideration by Jayawardene A.J. in Senaratna v. Perera The principlelaid down by him is stated by him in the following terms : —
“ In my opinion, formed after a careful examination of the authoritieson the subject, the principle that a decision is not res judicata betweenco-defendants is subject to two exceptions :
When a plaintiff cannot obtain the relief he claims without an
adjudication between the defendants, and such an adjudicationis made, the adjudication so made is res judicata not only betweenthe plaintiff and the defendants but also between thedefendants.
When adverse claims are set up by the defendants to an action,
the Court may adjudicate upon the claims of such defendantsamong themselves, and such adjudication will be res judicatabetween the adversary defendants as well as between the plaintiffand the defendants.
Provided that in either case the real rights and obligations of thedefendants inter se have been defined in the judgment. ”
As pointed out by me in Jayasundera v. Andris3 there appears to besome inconsistency between the criterion laid down by Sir George Lowndesin the Privy Council and the two exceptions referred to by JayawardeneA.J. in Senaratna v. Perera (supra). Sir George Lowndes states that acondition precedent to the application of the rule of res judicata asbetween co-defendants is that it must be necessary to decide theconflict of interest between such co-defendants to give the plaintiff therelief he claims. On the other hand Jayawardene A. J. in exception (b)
1 6 Ch. D. 29.* 26 N. L. R. 225.
3 41 N. L. R. 569.
HOWARD C.J.—Banda v. Banda.
states that, provided the real rights and obligations of the defendantsinter se have been defined in the judgment, when adverse claims are setup by the defendants to an action, the Court may adjudicate upon the claimsof such defendants among themselves and such adjudication will be resjudicata between the adversary defendants as well as between the plaintiffand the defendants. In exception (2) it is not therefore laid down as acondition precedent that it must be necessary to decide the issue betweenthe co-defendants to give the plaintiff the relief he claims. Moreover thelaw as laid down in exception (2) appears to conflict with the dictum ofSir George Jessel in Kevan v. Crawford (supra).
In order to reconcile the apparent inconsistency between the twoauthorities to which I have referred it is, therefore, necessary to haverecourse to the text books and other authorities. The subject receivesexhaustive treatment at pp. 170-176 of Hukm Chand’s treatise on the lawof res judicata. He proceeds in paragraph 77 to lay down theprinciple to which I have already referred that a decision in a suit does notoperate as res judicata against all the parties to the suit, but only againstthose between whom the matter adjudicated upon was in issue. It ison the same principle that parties to a suit are held not to be bound bya decision in it, in a subsequent suit between them, unless they were atarms length and on opposite sides in the former suit. In paragraph 78,however, the learned author states that the mere circumstance of anypersons having been formally arrayed pn the same side is immaterial,and it is agreed upon now, that they will be estopped by a decision on amatter, which was actively in issue between them, and as to which theyhad an active controversy against each other. Decisions of variousIndian Courts are then sited in support of this principle. It is onlynecessary to mention three of these cases. In Shaal Khan v. Amin-ul-lah Khan' Duthoit J. stated as follows : —
“ Both parties to the present suit were parties to the former one ; andalthough in the former they nominally stood together in thesame array, yet as a fact they were opposed to each other, S, being onthe side and supporting the case of his mother, the plaintiff, and Abeing the true defendant in the case. ”
' So also Cunningham'J. in Bissorup v. Gorachand ~ stated as follows : —
"There can be no doubt, that though the present plaintiffs werejoined as defendants in the former suit, they were practically supportingthe case of the plaintiff and had the fullest opportunity of contestingthe point which that suit decided, a circumstance which is proved bytheir being joined as respondents in the appeal. In these circumstances,the plaintiffs are debarred under section 13 from now again contestingthe same point with the parties to the former suit. ” '
The following passages from the judgment of West J., in Ramachandra v.Ncrayan3 is also in point:—
“ Where an adjudication between the defendants is necessary to givethe appropriate relief to the plaintiff, there must be such an adjudication,and in such a case the adjudication will, be res judicata between
* 1. L. R. IV All. 02.■ I. I.. Jl. IX t at. 120.
3 I. L. R. XI Bom, -2tc.
HOWARD C.J.—Banda v. Banda.
the defendants as well as between the plaintiff- and defendants. Butfor this effect to arise, there must be a conflict of interests amongst thedefendants and a judgment defining the real rights and obligations ofthe defendants inter se. Without necessity the judgment will not beres judicata amongst the defendants, nor will it be res judicata amongstthem by mere inference from the fact that they have collectively ;eendefeated in resisting a claim to a share made against,them as a group. "
Having stated the law it now remains to apply its principles (o thepresent case. Are the conditions formulated by Sir George Lowndes inMt. Munni Bibi v. Tirloki Nath (supra) based on the decision inCottingham v. Earl of Shrewsbury (supra) and followed in various Ceylonand Indian cases established ? There was in D.C. 36,732, clearly a conflictof interests .between the first defendant, the respondent in this appeal,and the added defendants, of whom two are appellants in this appeal. Theappellants, in D:C. 36,732 claimed lots B, C, and D, which was part of theland called Panwatta, through Ukku Banda. The plaintiff in that actionclaimed lot A through the same person. The respondent, however, claim-ed the whole of Panwatta, that is to say lots A, B, C, and D, through oneMedduma Banda Basnayake Nilame. The plaintiff in D. C. 36,732 could,therefore, only succeed if Panwatta belonged to Ukku Banda. If itbelonged to Medduma Banda Basnayake Nilame he failed. The defendantand added defendants though formally arrayed on the same side were al-arms length and in fact it was a case of the plaintiff and added defendant• being on one side and the defendant on the other. It was thereforenecessary for the establishment of the plaintiff’s case to decide betweenthe conflicting claims of the defendant and added defendants. The issueswere as follows : —
“ 1. Was Ukku Banda the owner of Panwatta alias Kotikabeddewattaor was Medduma Banda Basnayake Nilame the owner thereof ?
What rights have the parties acquired by prescription ? ”
These issues were answered as follows : —
“ 1. Medduma Banda Basnayake Nilame.
2. Plaintiff and added defendants have failed to establish title byprescription to the land. ”
In view of his findings on these issues the trial Judge dismissed^ theplaintiff’s action with costs. He also ordered the added defendants,including the two appellants in this appeal, to pay costs to the defendant,the respondent in this appeal. The added defendants appealed to theSupreme Court against this order and their appeal was dismissed, theorder of the lower Court being affirmed. I
I am of opinion that this case, so far as the question of- res judicata isconcerned, cannot be distinguished from Mt. Munni Bibi v. Tirloki Nath(supra). The conditions formulated by Sir George Lowndes in the lattercase are satisfied in this case. There was a conflict of interest between thedefendants concerned. It was necessary to decide this conflict in orderto give the plaintiff the relief he claimed and the question between the
HOWARD CJ.—Banda v. Banda.
defendants was finally decided. I have, therefore, come to the conclusionthat the learned District Judge was right in holding that the matter wasres judicata.
In view of the foregoing judgment, the judgment of the District Courtis affirmed and the appeal is dismissed with costs. This order is withoutprejudice to the defendants-appellants right to claim compensation forimprovements effected to the property in question since the decree in theearlier action.
Soertsz J. —I agree.
BANDA v. BANDA et al