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Present : Pereira J. .
CATHRINA et al. v. ALLIS et ol.
171—0. B. Galle, 7,304.
lotion rei vindicatio—Prospective mesne profits claimed—Claim dis-allowed—Subsequent action does not lie—Besjudicata—Civil
Procedure Code, s. 196.
Where in an action ret vindicatio prospective mesne profits amclaimed by the plaintiff, and the claim is disallowed, the order, inspite of the provision of section 196 of the Civil Procedure Code,operates as res judicata between the parties, and no fresh actioncan be brought for the recovery of the same mesne profits. Section196 does not vest in the Court a discretion as to allowing or'disallowing future mesne profits, but the discretion vested is merely1a discretion as to assessing beforehand the anticipated loss, andgiving judgment accordingly.
JJlHE facts appear from the judgment.
H. A. Jayewardene and Arulanandam, for plaintiffs, appellants.
St. Y. Jayewardene, for respondents.
Cur. adv. vuIt.
July 1, 1913. Pebeika J.—
The plaintiffs, claiming a certain share of the land. calledLeanaduragewatta, complain that the defendants are in unlawfulpossession of the share, and pray that they be condemned to paythe plaintiffs damage at Bs. 150 a . year from January 25, 1912,until the plaintiffs are restored to possession. The defendantsdeny the possession complained of. The main issue framed iswhether the defendants prevented the plaintiffs from taking theproduce of their share of the land. On the evidence led theCommissioner has decided this issue against the plaintiffs, anddismissed their claim. In this appeal it is hot open to the plaintiffsto contest the Commissioner’s finding on the facts, as no questionof title to immovable property is involved in the case. But itappears that some at least of the plaintiffs had brought actionNo. 6,793 of the Court of Bequests of Galle against these defendantsto be declared entitled to the share of land that they claim in thiscase; and in that case, although they claimed mesne profits as welluntil they regained possession, they were not allowed their prayer,and it is now argued by the defendants that the judgment in thatcase is res judicata in respect of the plaintiffs’ present claim fordamage. It is indeed unnecessary to go into this question in viewof the Commissioner’s decision on the facts, but as the. quCStion was
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argued at some length, I shall express my own view of it. Theargument is that mesne profits are allowed by our Courts undersection 196 of the Civil Procedure Code, and as that section vests adiscretion in the Court on the question of allowing mesne profits,the express or tacit disallowance by the Court of mesne profitsaccruing after action does not bar a second action therefor. Insupport of this contention decisions of some of the Indian Courtswere cited. In Mon Mohan Sirkar v. The Secretary of State forIndia 1 it was held that in a suit for recovery of possession andmesne profits the Court had power under section 211 of the CivilProcedure Code (same as section 196 of the Ceylon Code) toaward mesne profits either up to the date of the institutionof. the Buit or up to the date of delivery of possession, andthat when a decree for possession was silent as regards mesneprofits which had accrued between the date of the institution ofthe suit and delivery of possession, a separate suit would lie forsuch subsequent mesne profits. Ameer Ali J., in the course of hisjudgment, observed : “It does not follow that because plaintiffprayed for assessmout of damages until he wps restored to hisproperty, and the Court in its discretion was satisfied with decreeinghis claim for damages so far as thfey had accrued due. his claim fordamages far trespass continued after suit would be barred by therule of res judicata. ” In Kuppasamy Aiyer v. Venkataramier 3it was held that the granting of future mesne profits which theCourt had a discretion in any event either to make or to refusewas not relief that the plaintiff was entitled to as of right, and thatfuture mesne profits accruing after the institution of the suit didnot form part of the cause of action, and that it could not be claimedas of right, and could not, but for section 211, be asked for at all, andmight in any case be refused by the Court at discretion. The sameposition, it will be seen, is laid down in the case of Hays v. Padma-nand Singh3 but a contrary view would appear to have beentaken by the High Court at Madras in Ramabhadra v. Jaganatha. *This last case, I may mention, was not followed by the same HighCourt in the case of Kuppasamy Aiyer v. Venkataramier 2 that I havecited above. The view taken by this Qourt so far has been thattaken by the High Court at Madras in Ramabhadra v. Jaganatha. *7n Kiri Hamy v. Dingiri Amma 5 Layard C.J. observed: “ Everyright to damages which has been put in issue between the parties toan action becomes on the passing of the final decree in the action ares judicata, which cannot afterwards be made the subject of anaction between the same parties. The right to damages has beenclaimed and put in issue here in the prior action, and consequentlycannot be made the subject of a fresh action in the present suit. ”
* /. L. R. 17 Cal. 968.
3 IS Mad. L. J. R. 462.
• 1 Bed 146.
» I. L. R. 32 Cal. 118.
* I. L. R. 14 Mad. 328.
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In Kiri Banda v. Slema Lebbe 1 my brother Wood Benton agreedwith Layard C.J. in the opinion expressed by him in Kiri Hamy v.Dingiri Ammo.3 My own view, I may say, is the same. Mesneprofits are in the nature of prospective damages, and the right toclaim prospective damages accrues from the same cause of action—the same act or omission of the defendant—from which compensa-tion for ascertained loss is usually claimed. (See The Laws ofEngland, vol. X., p. 306, and the oases collated there.) This ismade quite clear by section 35 (1) (a) of our Code of Civil Procedure.If, then, mesne profits may be claimed as a matter of right, asaccruing from a certain cause of action, I fail to see why an adjudica-tion on a claim for such profits should not operate as an estoppel.Section 196 of the Civil Procedure Code does no more than empowerthe Court to decree the payment of a certain sum or certain sumsof money in lieu of mesne profits where they are claimed; that is tosay, the Court is vested with the power of assessing beforehand theanticipated loss, and giving judgment accordingly.
affirm the judgment appealed from.
CATHRINA et al v. ALLIS et al