100-NLR-NLR-V-43-COORAY-v.-JAYAWARDENE.pdf
JAYETILAKE J.—Cooray v. Jayawardene
427
1942Present: Jayetileke J.
COORAY v. JAYAWARDENE.83—C. R. Kalutara, 14,604.
Res judicata—New claim on pending cause of action—Replication by plaintiff—
No right to include new cause of action—Civil Procedure Code, s. 79.
Failure of plaintiff to include a claim upon a cause of action whicharose after the institution of an action, although upon the same subjectmatter, is no bar to the institution of a subsequent action upon suchclaim.
New matter amounting to a new cause of action cannot be set out ina replication filed under section 79 of the Civil Procedure Code.
PPEAL from a judgment of the Commissioner of Requests, Kalutara.
C. V. Ranawake (with him M. J. Molligode), for plaintiff, appellant.
E. B. Wickremanayake, for defendant, respondent.
Cur. adv. vult.
July 21, 1942. Jayetileke J.—
This appeal raises a very short point. It is whether the plaintiff’sclaim is res judicata by reason of the decree in action No. 22,061 of theDistrict Court of Kalutara. That action was instituted by the plaintiffagainst the defendant on August 14, 1940, for a declaration of title to aland called Kosgahawatte, for ejectment and for the recovery of Rs. 50as damages up to the date of action and further damages at Rs. 5 a monthtill she .was restored to possession. Her cause of action was that thedefendant has unlawfully got himself registered as the proprietor of theland under the Rubber Control Ordinance (Cap. 300) for the purpose ofobtaining coupons and was disputing her title to the land.
The defendant denied that the plaintiff was entitled to the land andset up a claim in reconvention against the plaintiff for a sum of Rs^ 50as damages, alleging that the plaintiff had been in unlawful possessionof the land from October 30, 1939, up to August 30, 1940.
The plaintiff filed a replication in which she stated that on August 30,1940, the defendant forcibly ousted her from the land and took possessionof it. She reserved her right to claim damages in respect of the ouster.
After the trial the District Judge entered judgment in plaintiff’s favouras prayed for in her plaint with damages at Rs. 5 a month from October,1939. After the termination of that action the plaintiff instituted thepresent action against the defendant for the recovery of a sum of Rs. 240as damages in respect of the ouster referred to in her replication.
The cause of action pleaded in her plaint was that on August 30, 1940'the defendant took wrongful possession of the land, tapped the rubbertrees standing thereon till March 1, 1941, and appropriated the rubber tohimself. The defendant pleaded that the decree in the .previous' actionwas res judicata.
428
JAYETILEKE J.—Cooray v. Jayawardene.
The Commissioner upheld the defendant’s plea and dismissed theplaintiff’s action with costs. He was of opinion that the plaintiff shouldhave put forward her claim in the replication or obtained the leave ofCourt to reserve her claim. Neither of these grounds can be supportedin law and, in my opinion, the Commissioner arrived at a wrong decisionon the issue which he tried. The plaintiff could not have put forwardher claim in the replication as new matter amounting to a new cause ofaction cannot be set out in a replication filed under section 79 of theCivil Procedure Code. Nor could she have applied to Court for permissionto reserve her claim as there is no provision in the Civil Procedure Codewhich would have warranted such a step being taken in the circumstancesof that case.
The Commissioner, perhaps, had in mind section 406 of the CivilProcedure Code but it is clear that it was inapplicable to that action.
I have carefully considered the arguments that were addressed to me byCounsel and have come to the conclusion that the plea of res judicatafails.
Counsel for the respondent sought to support the judgment on section 34of the Civil Procedure Code, which provides that a plaintiff shouldinclude, the whole of his claim in his action and ask for the whole of hisremedies. He contended that the cause of action in the first actionwas a dispute to the title and that the damages claimed in the presentaction flowed from that dispute and should have been included in thataction.
The short answer to this contention is, as I have already pointed out,that the pleadings in the two cases do not support it. On the contrary,the pleadings show that the matters in issue in the two actions weresubstantially different. It has been held by the Privy Council inPalaniappa v. Saminathan1 that section 34 of the Civil Procedure Code isdirected to securing the exhaustion of a relief in respect of a cause ofaction and not to the inclusion in one and the same action of differentcauses of action, even though they arise in the same transactions. '*?
The cause of action upon which the present action was founded was notin existence at the time of the institution of the first action and could nothave been the subject of litigation in that action. I do not think that anissue as to damages, consequent on an ouster which took place after theinstitution of the first action; could have been entertained by the Courtin that action. The Court could only whave decided the rights of theparties as at the date of action.
On the above grounds, I am of opinion that the judgment of theCommissioner should be reversed. I would set aside the judgmentappealed from and remit the case to the Court below for trial in due course*.The plaintiff will be entitled to the costs of the last date of trial and ofthis appeal.
Appeal allowed.
■ 17 N. L. R. p. 56.