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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice.KARUNAWARDANA v. WIJESURIYA et al.
C. R., Galle, 4,564.
Res judicata—Actionon mortgage bond by administratrix—Dismissal
because lettersinsufficiently stamped—Subsequent actiononthe
same bond—Plea in bar.
The plaintiff, as administratrix, sued the defendants on a mort-gage bond; the action was dismissed era the ground that the lettersof administrationwere notduly' stamped.The plaintiffthereupon
got theletters dulystamped and institutedthis action on the
same bond. Thedefendants'pleaded the .judgment inthefirst
action as res judicata.
Held, that theplea wasbad, inasmuchas the firstactionwaa
dismissed for want of title on the part of the plaintiff to sue, andsuch dismissal did not operate as res judicata.
a judgment of the Commissioner of Requests,
A. St. V. Jayewardene, for the defendants, appellants.
W. Jayewardene, for the plaintiff, respondent.
Cur. adv. vult.
» (1898) 1 N. L. R. 13.
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July 14, 1908. Hutchinson C'.J.—
The plaintiff sues in this action, as administratrix of the estate ofthe late Andris de Silva, Constable Arachchi, on a mortgage bondgranted to him by Don Simon de Silva, now deceased; the defend-ants are sued as heirs of the mortgagor. She had sued the samedefendants on the same cause of action in a former case in the sameCourt; that action was dismissed, the reason for the dismissal beingthat the plaintiff’s letters of administration were not "duly stamped.In the present action the defendants set up the plea of res judicata,pleading the decree dismissing the former action in bar of this action.The Commissioner over-ruled this defence, he held that the partiesare not the same, because the plaintiff in the former action was notthe administratrix, inasmuch as her letters were not then dulystamped. And he gave judgment for the plaintiff in accordancewith her prayer.
The defendants appeal from that judgment. There was an issueagreed upon, “ whether the defendants adiated the estate of thedeceased mortgagor; ” but no evidence was taken, and the Commis-sioner made no reference to it, and nothing has been said about it inthe petition of appeal or on the argument. The only question is,whether the claim is res judicata.
The appellants contend that the plaintiff in the former actionsued as administratrix, and that she was the administratrix; thather action failed because the grant .to her was not duly stamped, butthat she could have cured that defect by getting it duly stamped atany time before judgment, or she could have applied to .the Courtunder section 406 of the Code for leave to withdraw .that action andbring a fresh action; that this was like a case of a plaintiff suing on adeed or promissory no.te, whose action is dismissed because at thedate of trial and judgment the deed or note was not and could no.t beput in evidence because it was not duly stamped.
The law as to res judicata in Ceylon is contained in section 207 ofthe Civil Procedure Code. The “ explanation ” to that section saysthat every right to relief of any kind which can be claimed or set upor put in issue between the parties to an action upon .the cause ofaction for which the action is brought, whether it is actually soclaimed, set up, or put in issue or no.t, becomes on the passing thefinal decree a res judScata, which cannot afterwards be made thesubject of action for the same cause between the same parties.Several Indian cases were quoted by the respondent’s counsel. TheIndian Law on the subject is contained in section 13 of the IndianCivil Procedure Code; this enacts that “ no Court shall try any suitor issue in which the matter directly and substantially in issue in a
former suit between the same parties litigating under the
6ame title in a Court of jurisdiction competent to try such subse-quent suit or the suit in which such issue has been subsequently
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1908. raised and has been heard and finally decided by such Court.” IJuly 14.(j0 no£ think that there is any substantial difference between the
Hutchinson two enactments.
I do not think that this is like the case of a claim on a bond whichis in existence, but which, because it is not stamped or for some otherreason, the plaintiff fails to put in evidence. There the plaintiff'sright to sue is complete, but his action is dismissed for want ofevidence which he might have adduced. This is like a case of aclaim for a debt which is not due at the time the action is tried;the dismissal of the action would not be res judicata when a secondaction was brought after the debt became due. Here the plaintiffwas not entitled to maintain her first action at the time of the trialof that action; she sued in a representative character, and she hadno title .to sue then.- Now she has a title.
In my opinion the appeal should be dismissed with costs.
KARUNAWARDANA v. WIJESURIYA et al