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JAYAWARDENA AND FIVE OTHERS
v.
DEHIATTAKANDIYA MULTI PURPOSE CO-OPERATIVE SOCIETY LTD.
AND FIFTY OTHERS
COURT OF APPEALS. N. SILVA, J. (P/CA)
C.A. 197/95JUNE 30, 1995.
Writ of Certiorari – Previous application of 1st Petitioner withdrawn – Secondapplication by same Petitioner on the same grounds with 5 others – Rule 47 ofS.C. Rules 1978 – Rule 3(2) Court of Appeal (Appellate Procedure Rules 1990) -S. 406 Civil Procedure Code S. 60(c) Co-operative Societies Law No. 5 of 1972 asamended by Act No. 11 of 1992.
The six Petitioners challenged the Order made by the 2nd Respondent (DeputyCommissioner of Co-operatives) appointing 3, 4, 5 Respondents as members ofthe Committee of Management of the 1st Respondent Society as ultra vires andmade in excess of jurisdiction.
A previous application filed by the 1st Petitioner – President of the 1stRespondent Society – challenging the same Order was withdrawn by him withoutreserving the right to institute a fresh application. It was contended that in view ofthe motion for withdrawal of the 1st Petitioner and the Order of dismissal made bythe Court, the Petitioners cannot now seek to invoke the jurisdiction of this court,once again in respect of the same matter.
Held:
The first application was by the 1st Petitioner who was the President of the1st Respondent Society. The second application has been filed jointly by the 1stPetitioner together with other members of the Committee of Management of the1st Respondent Society. The Order challenged is the same in both applications,the ground of challenge is also the same, it also appears that the motions forwithdrawal was entirely free of any conditions.
A petitioner has no right to relief by way of a Writ. As the Petitioner haswithdrawn an application for a Writ without reserving his right to institute freshproceedings he will be barred, in the absence of exceptional circumstances, frominstituting a fresh application in respect of the same matter.
Per Silva, J.
'It is thus seen that it is in the Public interest that a party should not be vexedtwice upon litigation in respect of the same matter. The Supreme Court Rules
Jayawardena and Five Others v. Dehiattakandiya Multi Purpose Co-operative
CASociety Ltd. and Fifty Others (S. N. Silva. J. (P/CA))277
require a Petitioner to state that he has not invoked the jurisdiction of the courtpreviously in respect of the same matter.
The formulation of Rule 47 (S.C. Rules) and Rule 3(2) Court of Appeal Rules that aPetition should contain an averment that the jurisdiction of this Court has not beenpreviously invoked in respect of the same matter, clearly indicates that a partymay not institute fresh proceedings, in respect of the same matter after theprevious application has been concluded.
The contents of Rule 47 and Rule 3(2) appear to be based on the doctrine of ResJudicata. This doctrine is founded upon the maxim Nemo debit fis vexari, pro unaet eadem causa which is itself an outcome of the wider maxim interest reipublicae ut fius litium. It is thus seen that it is in the public interest that a partyshould not be vexed twice upon litigation in respect of the same matter.
Case referred to:
1. Herath v. Attorney-General- 60 NLR 193
APPLICATION for Writ of Certiorari.
Mahanama de Silva for the Petitioner.
T. M. S. Nanayakkara for the Respondents.
Cur. adv. vult.
July 21, 1995.
S.N. SILVA, J. (P/CA)
The six Petitioners and the 6th Respondent are elected membersof the Committee of Management of the 1st Respondent society. Thesociety was set up with a working capital of Rs. 1 million said to havebeen provided by the Mahaweli Authority. This application for a writ ofCertiorari has been filed on the basis that the 2nd Respondent(Deputy Commissioner of Co-operatives) made an appointment byorder dated 5.12.1994 (g) acting ultra vires, in excess of hisjurisdiction. The order ‘G' is an appointment of the 3rd, 4th and 5thRespondents, being the Civil Engineer, Mahaweli Economic Agency,Assistant Engineer Divisional Office Lihiniyagama and PrincipalHenanigala South School Nawa Medagama, as members of theCommittee of Management of the 1st Respondent of the 1stRespondent Society. According to the order it has been made interms of Section 60C of the Co-operative Societies Law No. 5 of 1972as amended by Act No. 11 of 1992. The appointment is for a periodof one year that is up to 6.12.1995.
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The 2nd, 3rd, 4th and 5th Respondents have raised an objection,in limine to this application on the basis that a previous applicationfiled by the 1st Petitioner challenging the validity of the same orderwas withdrawn by the 1st Petitioner without reserving the right toinstitute a fresh application. It was submitted by learned Counsel forthese Respondents that in view of the motion for withdrawal of the 1stPetitioner and the order of dismissal made by this Court, thePetitioners cannot now seek to invoke the jurisdiction of this Court,once again in respect of the same matter. Learned counsel for thePetitioners conceded that a previous application (CA 28/95) was filedby the 1st Petitioner being the President of the Society challengingthe validity of the order marked ‘G’ in this application. It appears thatthe same order had been marked ‘G’ in application CA 28/95 as well.It was also conceded that the ground of challenge was the same inapplication CA 28/95 as in this application. Counsel who appearedfor the 1st Petitioner in that application moved in open court towithdraw the application on 1.2.95. The court allowed the motion forwithdrawal and dismissed the application without costs. It wasconceded by learned counsel for the Petitioners that the 1stPetitioner did not make any reservation of his right to re-instituteproceedings at the time of the motion for withdrawal. Hence it iscommon ground that the previous application filed by the 1stPetitioner was in respect of the same order that is challenged in thisapplication, was based on the same ground as urged in thisapplication and was dismissed by this court on 1.2.95 upon anunconditional motion for withdrawal. Learned counsel for thePetitioners submitted that the previous application was withdrawn onthe basis of a settlement and that this application has been filedsince the respondents violated that settlement. On the other handcounsel for the respondents submitted that the Petitioners haveviolated the arrangements that were made. But, he submitted that thewithdrawal was unconditional and that the arrangement was to electthe 3rd Respondent as the President of the Society and that the 1stPetitioner resiled from that arrangement. It was also submitted bylearned counsel for the Respondents that since this application hasbeen filed jointly by the 1st to 6th Petitioners and the 1st Petitioner isbarred from instituting a fresh application the application itself is notproperty constituted and should be rejected.
I have carefully considered the submissions of Learned counselregarding the preliminary objection that has been raised. The 1stPetitioner was the President of the 1st Respondent Society. He filed
Jayawardena and Five Others v. Dehiattakandiya Multi Purpose Co-operative
CASociety Ltd. and Fifty Others (S. N. Silva, J. (P/CA))279
application bearing No. CA 28/95 on 12.1.95 for a Writ of Certiorari toquash the order dated 5.12.94 made by the 2nd Respondent. Theseapplications has been filed jointly by the Petitioner in applicationCA 28/95 together with other members of the Committee ofManagement of the 1st Respondent Society. The order challenged,as noted above, is the same in both applications. The ground ofchallenge is also the same. According to the documents filed, afterobjections were tendered in C.A. 28/95, on 1.2.95 the case had comeup in open court and counsel who then appeared for the present 1stPetitioner moved to withdraw the application. The motion forwithdrawal has been made in open court. There is no record ofcounsel informing court of any settlement or arrangement betweenthe parties, or the basis of which the motion for withdrawal wasmade. If there was any such arrangement counsel who appeared inthat application or the registered Attorney should have filed anaffidavit to that effect. In the absence of a specific record in theproceedings of C.A. 28/95 and in the absence of any affidavit bycounsel or the registered attorney who appeared in that case, it hasto be assumed that the motion for withdrawal was entirely free of anyconditions. That the application has thereupon been dismissedwithout costs.
Learned counsel for the Respondents submitted that the 1stPetitioner is barred from making repeated applications to this court inrespect of the same subject matter, and on the same ground. Hesubmitted that it is contrary to public policy to allow a Petitioner towithdraw an application unconditionally and then after the dismissalof the first application to permit the same petitioner to institute freshproceedings on the same matter on the same grounds.
The application is for a Writ of Certiorari. A Petitioner has no rightto a remedy by way of Certiorari which pertains to the extraordinaryjurisdiction of this Court. The conduct of the 1st Petitioner is materialin considering whether the 2nd application filed by him should beentertained. The Supreme Court Rules relevant to applications forWrits and other applications has at all times contained a provisionthat a petition should include an averment that the jurisdiction of theCourt of Appeal has not been previously invoked. Rule 47 of theSupreme Court Rules 1978 contains a specific provision which readsthus:
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“The petition and affidavit except in the case of an applicationfor the exercise of the powers conferred by Article 141 of theConstitution shall contain an averment that the jurisdiction of theCourt of Appeal has not been previously invoked in respect ofthe same matter. Where such averment is found to be false theapplication may be dismissed”
Rule 3(2) of the Court of Appeal (Appellate Procedure Rules of 1990),relates to the same matter and reads thus:
“The petition and affidavit except in the case of an applicationfor the exercise of the powers conferred by Article 141 of theConstitution shall contain an averment that the jurisdiction of theCourt of appeal has not previously been invoked in respect ofthe same matter. If such jurisdiction has previously beeninvoked the petition shall contain an averment disclosingrelevant particulars of the previous application. Where any suchaverment as aforesaid is found to be false or incorrect theapplication may be dismissed.”
The formulation of the foregoing Rules that a petition shouldcontain an averment that the jurisdiction of this Court has not beenpreviously invoked in respect of the same matter, clearly indicatesthat a party may not institute fresh proceedings in respect of thesame matter after the previous application has been concluded. Thisformulation is a clear guide that there could be no situation where asecond application can be filed by the same party on the samesubject matter. Indeed there could be situations where there is freshmaterial on the basis of which a party may seek leave of court toinstitute fresh proceedings in respect of the matter challenged in theprevious proceedings. There may also be situations where a specificreservation is made, reserving the right of the petitioner to institutefresh proceedings at a future date. In the absence of any exceptionalcircumstances such as fresh material or reservation as aforesaid, itwould be inconsistent with the said Rules for a party to institute asubsequent application regarding the matter that has beenchallenged in a previous application.
Jayawardena and Five Others v. Dehiattakandiya Multi Purpose Co-operative
CASociety Ltd. and Fifty Others (S. N. Silva, J. (P/CA))281
Counsel for the Petitioners submitted that the Respondents resiledfrom an agreement on the basis of which the previous applicationwas withdrawn. As noted above, there is no evidence of any suchagreement. In any event there is a different version as to anarrangement, emanating from the Respondents. These matters arenot within the purview of the order that is challenged in thisapplication. The Court was not apprised of in C.A. 28/95 of anyarrangement or agreement on the basis of which the applicationwas withdrawn. There is no possibility of inquiring into theseallegations and counter allegations that do not pertain to the subjectmatter of the application namely, the order marked ‘G’. If the court isto inquire into these matters it would have to embark on a course farremoved from the basis of challenge of the order marked ‘G’. I am ofthe view that it is not within the competence of this court inconsidering the validity of an administrative order which ischallenged in an application for a Writ of Certiorari, to consider theconduct of parties in relation to an alleged agreement or arrangementon the basis of which a previous application is said to have beenwithdrawn. For all purposes the Court has to assume that thewithdrawal was unconditional and the dismissal entered on 1.2.95 isa final determination of the application of the 1st Petitionerchallenging the validity of the order marked ‘G’.
The contents of Rule 47 and Rule 3(2) referred above appear to bebased on the doctrine of res judicata. By Res Judicata is meant thetermination of the controversy by a judgment of a court. This isaccomplished either by an adverse decision or by discharge fromliability. In the case of Herath v. Attorney-General(,) a bench of 3Judges of the Supreme Court considered the implications of thisdoctrine. Basnayake, CJ. cited an authority which expresses the viewthat the doctrine is founded upon the maximum “nemo debet bisvexari pro una et eadem causa which is itself an outcome of the widermaxim interest reipublicae ut sit fins litium (p217). It is thus seen thatit is in the public interest that a party should not be vexed twice uponlitigation in respect of the same matter. The Supreme Court Ruleshave clear an underpinning of the aforesaid element of publicinterest. It is for that reason that the Rules require a petitioner to statethat he has not invoked the jurisdiction of the court previously inrespect of same matter. The basic assumption is that if a party has
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invoked the jurisdiction of the court previously in respect of the samematter, he is barred from invoking the jurisdiction for the second timesave in exceptional situations as noted above. If this principle is notapplied, it would happen as in this case, where a party who haswithdrawn his earlier application without any reservation retainsanother counsel and makes a second foray to this court by way of afresh application. Any arrangement or agreement that has not beennotified to court at the time of withdrawal of an application cannot bepleaded and made the subject of fresh proceedings.
The Civil Procedure Code which regulates the procedure of CivilCourts is not applicable to a proceedings before this Court for a Writof Certiorari. However the Code has been in operation for over acentury and its provisions would be a useful guide to the basis onwhich this Court should decide the question at issue. Section 406 ofthe Code states thus:
406 (1) If, at any time after the institution of the action, the courtis satisfied on the application of the plaintiff—
that the action must fail by reason of some formal defect, or
that there are sufficient grounds for permitting him towithdraw from the action or to abandon part of his claimwith liberty to bring a fresh action for the subject-matter ofthe action, or in respect of the part so abandoned,
the court may grant such permission on such terms as to costsor otherwise as it thinks fit.
(2) If the plaintiff withdraw from the action, or abandon part ofhis claim, without such permission, he shall be liable for suchcosts as the court may award, and shall be precluded frombringing a fresh action for the same matter or in respect of thesame part.”
In view of the foregoing provision a plaintiff in a civil action wouldbe barred from instituting another action in circumstances as statedabove. A civil action is instituted as of right to redress a wrong. Onthe other hand the granting of a Writ is a discretionary remedy in theexercise of the extraordinary jurisdiction of this Court. A petitioner has
Jayawardena and Five Others v. Dehiattakandiya Multi Purpose Co-operative
CASociety Ltd. and Fifty Others (S. N. Silva, J. (P/CA))283
no right to relief by way of a writ. The conduct of a petitioner isrelevant in considering whether his application should beentertained. For the reasons stated above. I am of the view that apetitioner who has withdrawn an application for a writ withoutreserving his right to institute fresh proceedings will be barred, in theabsence of exceptional circumstances, from instituting a freshapplication in respect of the same matter. Therefore I have to upholdthe objection of learned counsel for the Respondents that the 1stPetitioner cannot file this application in view of the order of dismissalmade against him in CA 28/95 on 11.2.95.
The last matter to be considered is whether the entire applicationshould be dismissed in view of the order made in CA 28/95 againstthe 1st Petitioner. The 2nd to 6th Petitioners as members of theCommittee of Management have locus standi to challenge the ordermarked ‘G’ in an application for a Writ of Certiorari. It is probable thatthey stood by and allowed the 1st Petitioner being the President tofile application 28/95. However the order in CA/28/95 is against the1st petitioner and cannot bar the other Petitioners who have asufficient locus standi as noted above from challenging the validity ofthe decision marked 'G' in a separate application. But there is merit inthe submission of learned counsel for the Respondents that thepetition filed by the Petitioners is badly constituted since it is a jointapplication of all the Petitioners including the 1st Petitioner. Thatalone would not be a ground for the rejection of the entire petition. Iwould therefore allow the objection of the Respondents and rejectthis application in so far as it relates to the 1st Petitioner. The otherPetitioners may, if they are so advised move to proceed with thisapplication upon filing an amended petition, by themselves to theexclusion of the 1st Petitioner. I therefore grant to the 2nd to 6thPetitioners time till 22.8.95 to file an amended petition if they are soadvised. The question of accepting the amended petition will beconsidered by court after necessary papers are filed. Mention on22.8.1995. The application of the 1st Petitioner is dismissed withcosts fixed at Rs. 2500/- to be paid by the 1st Petitioner to the 2nd to5th Respondents.
Application of the 1st Petitioner dismissed.
Other Petitioners granted permission to file amended Petition.
