CORNELIS APPUHAMY v. APPUWA et al

030-NLR-NLR-V-10-CORNELIS-APPUHAMY-v.-APPUWA-et-al.pdf


( 361 )
[Full Bengh.]
Present: Sir Joseph T. Hutchinson, Chief Justice, Air. JusticeWendt, and Mr. Justice Middleton.
COENELIS APPUHAMJ u. APPUWA et ahC, R.t Kegalla, 7,362.
Supreme Court—Power to dismiss action with liberty to re'institute—Inherent powers of Supreme Court—Courts Ordinance (No.1 of
1889), ss. 39 and 4Q-—Civil Procedure Code,8$. 207,406, ana
773.
The Supreme Court, in its appellate jurisdiction, has power indismissing an action to give the plaintiff, liberty to bring a freshaction on the same cause of action.
Where such permission has been granted it is not competent forthe defendant to raise the plea of res judicata.
T
HE plaintiff sued the defendants for a declaration of title andejectment in respect of a land called Etikehelwarayehena in
case No. 6,471 of the Court of Bequests of Regalia.* The Commis-sioner having given judgment for the plaintiff, the defendantsappealed. In appeal the Supreme Court did not consider that theplaintiff had satisfactorily established his title, and accordingly thejudgment of the Commissioner was set aside and the plaintiff'saction was dismissed, with*liberty to the plaintiff to bring anotheraction if he was so advised. The plaintiff thereupon institutedthe present action. The defendants pleaded the previous judgmentin bar of the present suit. The Commissioner (P. E. Pieris, Esq.)made the following order:
11 C. E., 6,471, was between the same parties and on the samecause of action as the present; in that case the Commissioner gavejudgment for the* plaintiff; in appeal this decree was set aside andthe plaintiff's action dismissed, with liberty to the plaintiff to bringanother action if he was so advised.
“ I am now asked to regard the decree in appeal as a final order ofdismissal, and to regard the liberty reserved to the plaintiff as somuch surplusage. The Supreme Court judgment runs: ‘I do notthink that the plaintiff has satisfactorily established his titleto the land. ' In view of the case quoted from 13 Moore 160 in^
O'Kinealy’s’Civil Procedure Code, I think Mr. Pieris' contention isright. I accordingly hold that plaontiff is not entitled to bring thisaction, which is dismissed with costs."
The plaintiff appealed.
6
N. A 00907
1906.
December 4.
1006
December 4.
( 162 )
A. St. V. Jayewardene, for plaintiff, appellant.—The judgmentcited by the Commissioner does not support the defendantscontention. In Watson & Go. v. The Collector of Rajshaliye (1),which is the case relied on, the Privy Council did not hold thatthe High Court in India had no power to dismiss an actionwith liberty to institute a- fresh action, nor did it hold that even thesubordinate Courts had no such power. What was held in that casewas that if any Court exercised this power, the High Court would,be entitled to inquire into the propriety of the reservation when allthe circumstances are before them. The powers of the Supreme Courtof Ceylon sitting in appeal are to be found in sections 39 and 40 ofthe Courts ■ Ordinance and in section 773 of the Civil Procedure Code.It will, be competent to the Supreme Court to make such an order
the one in question in appeal, as section 40 empowers it “to passsuch judgment, sentence, 4ecree» or order therein between and as
regards the partiesas the Supreme Court shall think fit, "
and it has been held that under Rule No. 4, Order No. 58, which
empowers the Court of Appeal in England “to bear inferences
of fact and to give any judgment and make any order which oughtto have been made and to make such further or other order as the
case may require “ judgment might be ' passed for the
defendant, leaving it open to the plaintifE to bring another suit forthe same cause of action; Pinto v. Badman (2). The appealCourt in Ceylon, which possesses powers similar to those of theEnglish Court of Appeal, ought to have the power to make a similarreservation. In Watson. & Co. v. The Collector of Rajshaliye (1) (ubisupra) it was laid down that the Courts of Equity in Englandhave the power to make such a reservation, the Supreme Court inthis Colony having all the powers of the Superior Courts atWestminster [In re Ferguson (3); In the matter of the election ofa Councillor for the Qalupiyadda Ward of the Galle Municipality(4)] should also have the same power. In the first case the defen-dant accepted the reservation • without objection, and is nowestopped from raising the plea of res judicata [Rajib Sarkhel v. Nil-monee Sing Deo (5)]. It may also be treated as an order undersection 406. ‘ In this particular case, can the' lower Court review orquestion the order of this Court,. even if made without jurisdiction?
Sampayot K.C.< for defendant, respondent.—The provisions ofsections 39 and 40 of the Courts Ordinance are intended only todefine in general terms the powers of the Supreme Court, but do notover-ride the special provisions of the Civil Procedure Code, which, itis submitted, are imperative as to the finality of decrees. It appearsto be admitted that the reservation in the judgment of the SupremeCourt is not justified by section 406 of the Civil Procedure Code.
(1860) 13 M. I. A. 160.‘ (4) (1905) 8 N. L. R. 300.
8 R. P. C.(5) 20 W. R. 440.
(1874) 1 N. L. R. 181.
( 16B )
As a matter of fact the Supreme Court adjudicated on the title of ISO®*the plaintiff and dismissed his action on the merits, and the case ^ecem&ertherefore does not come within the purview of section 406. Theliberty to bring a fresh action in those circumstances would make thedecree equivalent to a non-suit, which is expressly disallowed bysection 207. The Supreme Court is bound by these provisions, andany order contrary thereto has no effect in law. In the Indian CivilProcedure Code there is no provision corresponding to our section207, and yet the Privy Council in Watson & Co. v. The Collector ofRajshahye (1) held that the Courts in India had no such power todiffmjafl a case with liberty to institute a fresh action as the. Court ofEquity in England exercised. He also cited Sulch Lai v. Bhikhi (2)and Cursandas Natha v. Ladka Vahu (8).
Cur. adv. vult*
4th December, 1906. Hutchinson C.J.—
The plaintiff had previously sued the defendants for the samecause of action. He obtained judgment in that action, but theSupreme Court on appeal dismissed the action, " giving the plaintiffliberty to bring another action if so advised. ” The defendantspleaded the judgment of the Supreme Court in bar of this action,alleging that the Supreme Court had' no authority to authorize thebringing of a fresh action.
Section 207 of the Civil Procedure Code enacts that “ all decreespassed by the Court shall, subject to an appeal, when an appeal isallowed, be final between the parties, and no plaintiff shall hereafterbe non-suited. " That applies to Courts of first instance. Thepowers of# the Supreme Court on appeals are defined in section 40of the Courts Ordinance and section 773 of the Civil Procedure Code.
These powers are not limited by section 207. It is empowered bythe Courts Ordinance “ to pass such judgment between and asregards the parties as it shall think fit." The Supreme Court,following the spirit of section 207, ought, as a rule, either to makesuch order as the iCourt below ought to have made, or else to put thematter in train, as, for example, by directing a new trial or thetaking of further evidence, so that the dispute may be finally settledin the action with which the Court is then dealing. It cannot,
■however, be said that it has no power to make such an order as wasmade in this case; and, besides, it would be wrong for this Court,and still more wrong for an inferior Court, to set aside or treat asultra vires# a judgment given by the Supreme Court. So long as the #judgment stands unreversed by a higher Court, it should be regardedas binding.
I think that the appeal should be allowed, and “the case be sentback for trial.
(I) (1860) 13 M. I. A. 160.-(2) I. L. R. 11 All 187. .
(3) /. L. R. 19 Bom. 571.
( 164 )
1A06.
December 4.
Wbnpt J.—
This case involves an important question as to the right of anunsuccessful plaintiff to sue again, and has therefore been referredto a bench of three Judges. It is unnecessary for me to recapi-tulate the facts, which are sufficiently set out in the judgment of mybrother Middleton. The respondent’s case involves the contentionthat the order of this Court on the former appeal, giving plaintiffleave to sue again, was nugatory as made without jurisdiction.That is the view which the Commissioner took, and I agree with mybrother’s view as to the impropriety of the Commissioner presumingto review the order of the Supreme Court. That was an order madein contemplation of the very action he was trying, and his duty wasto obey it, leaving it to the defendant, if so advised, to raise thequestion of its validity before this Court. The order is one which iscommonly made in practice in this Court, and it is desirable thatthere should be no uncertainty as to its effect.
In my opinion the order of Mr. Justice Moncreiff may be regardedas one made under section 406 of the Code of Civil Procedure. Thatsection is a reproduction of section 378 of the present Indian Code.In the former Indian Code (Act VIII. of 1869) the words were “ atany time before final judgment. ” The substitution for these of thewords 11 at any time after the institution of the suit ” adopted inour Code is significant, and it appears to be settled in India that thepermission to withdraw and sue again may be given' by an AppellateCourt as well as the Court of first instance. The Court, in grantingsuch permission, should properly record its reasons, which wouldinvolve its opinion on the material put before it by the plaintiff, andthis opinion would ordinarily be that if. a decision had to be givenon it the action must be dismissed. Respondent contends that thatis as far as he could go under section 406, that if it went further andsaid “ the action is dismissed, but I permit plaintiff to sue again,it would be fatal to the validity of the order. The objection is notone of substance, but of form merely; for if this( Court's attentionhad been drawn to the formality of such an objection being there-after preferred, I have not the least doubt that the order would havebeen expressed in different words. That is, I think, clearfrom the judgment of Moncreiff J. Looking, then, to the substanceof the order in question, I think it is authorized and justified bysection 406.
I agree with appellant's counsel in thinking that the decision ofthe Privy Council, cited to us, did not involve the adjudication thatsuch an order was beyond the competency of even the Indian HighCourts. The powers conferred upon this Court by section 40 of.theCourts Ordinance are wider than those possessed by the Indian HighCourts in their appellate jurisdiction.
I think, therefore, that the appeal should be allowed with costs.
( 165 )
Middleton J.
This was an appeal referred to the Full Court for decision of thepoint whether the Supreme Court has the power, in dismissing anappeal, to reserve a right to the plaintiff to bring a fresh action forthe same cause.
Judgment was given by this Co.urt in C. B., Kegalla, 6,*171, on anappeal by the defendants, dismissing the plaintiff’s action on theground that he had not satisfactorily established his title to certainlands, but giving him leave to bring another action if so advised.
The plaintiff accordingly brought the present action, and upon thecase coming up for settlement of issues, defendant’s* proctor objectedthat the action was res judicata, and that the order of the SupremeCourt was ultra vires, and quoted Watson & Go. v. The Collector ofRajshakye et ah (1).
The Commissioner, on the authority of that case, dismissed theplaintiff’s action, and thereupon this appeal.
In the case quoted it is worthy of observation that the PrivyCouncil judgment states at page 170 that their Lordships are awareof no case, other than the case they were then dealing with, in which,upon an issue joined, the party having failed to produce the evidencehe was bound to produce in support of that issue, liberty has beengiven to him to bring a second suit.
Their Lordships appeared also to think that if a Judge of any ofthe Indian Courts had such a power of reservation, and withoutlaying down that no Judge had, the decree, though not appealedagainst, was not binding on. the High Court, which in a case in whichit was pleaded as res judicata might properly consider the proprietyof the reservation.
The judgment of the Privy Council, therefore, points to the con-clusion that, where a decree in the nature of a non-suit was formerlyentered by Courts of Equity, it was only where the suit failed onsome point of form; and secondly, that the unappealed againstdecision of a lower Court may be questioned by a higher Court,'Where its propriety comes in issue in a subsequent suit, if all thecircumstances are before that Court.
– Non-suits in their full sense in the English Courts are*- done awaywith by Order 26, leaving the matter to the discretion of the Judge,but although the term “ non-suit ” is still used, it is in the sense ofjudgment for the defendant (2).
In the present case the order of the Supreme Court granting thereservation*vjas an order made not on a point of form, but because,after issue settled, the plaintiff had failed to prove his title, and theCourt was not satisfied with the title of the defendant. *
To my mind this is a state of affairs which might occasionallyoccur in the Courts of Ceylon either through the ignorance of suitors
(1) (1860) 13 M. I. A. 160.(2) (1907) Annual Practice, Vol. 31., p. 406.
1906.
December 4*
( 166 )
1906.
December 4.
Middubton
J.
or indolence of their advisers in the lower Court, and, in my opinion,the power to reserve the right to bring a fresh action under suchcircumstances is one which might properly and in fact ought to beexercised on fit occasions by the Supreme Court for the preventionof what would otherwise bo a failure of justice.
The question is, however, whether the Supreme Court has such aright. In my opinion it has. I do not think that the powers of anAppellate Court in India referred to by counsel for the appellant inquoting section 582 of the Indian Code of Civil Procedure are anycriterion of the powers of the Supreme Court of Ceylon, as an Appel-late Court in India is by no means always the High Court.
The powers of the Supreme Court of Ceylon are to be found insections 39 and 40 of the Courts Ordinance of 1889, and include in
section 40 “ the right to pass such judgment therein between
and as regards the parties or to give such direction to the Courtbelowas the Supreme Court shall think fit. M
Under the powers granted to the Appeal Court in England underOrder 58, Rule 4, which include a power to make any order whichought to have been made, and to make such further or other orders-as the case may require, it has in the case of Badman v. Pinto (1)held (2) that a non-suit is not a form of judgment applicable to acase before the Court of Appeal, but that it .can, if it thinks fit. givejudgment for the defendant in such a form as will enable a freshaction to be brought.
In my judgment the powers of the Supreme Court of Ceylon areamply wide enough to enable it also to act in the manner assumedby the Appeal Court in England.
It is true, as counsel for the respondent* urges, that such anorder is not an order under section 406 of the Civil Procedure Code,but the fact that section 207 is unique and so stringent • in itsterms is, I*think, an additional reason why the Supreme Courtwas intended to have the power contended for by the appellant’scounsel.f
This Court could no doubt, if it chose, act under section 406 ofthe Civil Procedure Code, or exercise its power under section 40 of the<Courts Ordinance of ordering a new trial, but the power to actin the way objected to by the respondent is a power that, I think,is within the terms of that section also.
In my. judgment the Commissioner of Requests had no right andought not to have acted in contravention of the order of the SupremeCourt, but should have noted the objection taken to it4’in his Courtand proceeded to hear the case, leaving it to the party affected bythat order to make his appeal in the ordinary way, and obtain thesense of the Supreme Court on its own order.
0) 8 R' P' C. 181.(2) (1907) Annual Practice, Vol. II,, p. 811.
The action of the Commissioner, in deciding as he has done, ispractically an assumption of a right to decide as to the validity oforders of this Court, which it is his duty to obey and carry out, andnot to question.
Taking this view of the powers of this Court under section 40, itis not necessary to consider the other points as to inherent juris-diction and estoppel.
I would allow the appeal with costs, and direct the Commissionerto proceed to the hearing of the action, the respondent paying allthe appellant's costs to date in the Court below.
Appeal allowed; case remanded.
1906.
December 4.MtDDTjETON
J.