094-NLR-NLR-V-11-KIRI-BANDA-v.-SLEMA-LEBBE-et-al.pdf
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Present : Mr. Justice Wood Renton.
KIRI BANDA v. SLEMA LEBBE et al.
It., Gampola, 10,205.
judicata—Mesne profits accruing pendingaction—Separateaction—
Civil Procedure Code, ss. 35, 196, and S07.
Plaintiff sued thedefendantin C. R.,Gampola,9,396,for a
declaration of title to a divided share of a certain land and alsomesne profits, and obtained judgment on February 28, 1907. Theplaintiff subsequentlyinstitutedthisactionclaimingmesneprofits
or damages from March, 1907. The defendent pleaded the previousaction (C. R., Gampola, 9,395) in bar of the present claim.
Held, that the plea was entitled to succeed, and that the plaintiff’spresent action was barred by the operation of sections 196 and 207of the Civil Procedure Code.
A
PPEAL by the defendants from a judgment of the Commissionerof Requests (W. de Livera, Esq.).
A. St. V. Jayewardene, tor the defendants, appellants.
There was no appearance for the plaintiff, respondent.
1908.
September 7.
Res
Cut. adv. vult.
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September 7, 1908. Wood Benton J.—1908.
This is an appeal against a decree of the Commissioner of Bequests, SePtember *•Gampola, in which the respondent sued the appellants for quietpossession of a divided share of a certain land, and also for Bs. 4,600by way of damages, Bs. 4 a month further damages pendente lite.
The damages claimed are in the nature of mesne profits. Theappellants in their defence made answer that the action was barred,inasmuch as the matter in dispute between the parties had beenraised in a previous case (C. B., Gampola, 9,895), and had alreadybeen decided.
At the trial no evidence was led, and the case has proceeded so faronly on the point of law raised in the appellants’ answer.
Since the argument of this appeal, I have called for the record inC. B., Gampola, 9,895, and it appears thereupon that the action wasinstituted on August 2, 1906, and came on for trial on February28, 1907.
In the present case the respondent claims mesne profits fromMarch, 1907, onwards, and the question of law that has to bedecided is whether it was competent for him to embody that claim inhis original action so as to make the decree in that action conclusiveagainst bis right to sue for such mesne profits now.
The learned Commissioner of Bequests has decided this pointin favour of the respondent. He says that it is settled lawthat mesne profits before the institution of a first suit cannot besued for in a subsequent suit, but that the present case is fordamages in respect of mesne profits after the institution of the firstsuit, and after trial of that suit. He holds, therefore, that an actionis maintainable.
I agree with Mr. Jayewardene that this decision is wrong. It isclear that under section 207 of the Civil Procedure Code a decreepassed by the Gout is final between the parties in regard to everyform of relief which was capable of being claimed in the action, andas section 196 of the Civil Procedure Code provides that when anaction is brought for the recovery of the possession of immovableproperty yielding rent or other profit, the Court may, when such aprayer is embodied in the plaint, award the plaintiff in the decreemesne profits from the date of the institution of the action until thedelivery of possession to the party in whose favour the decree ismade. 1 think that it was competent for the respondent to haveclaimed such mesne profits in his original suit. So far as.it goes, thedecision of Sir Charles Peter Layard, in the case of Kiriliamy v.
Dingiri Ammo,,1 supports the view of the law that I have taken inthe present case. In view of the provisions of section 196 of the CivilProcedure Code, I do not think that the clause in section 35 (1) (a),which enables a . plaintiff to join with an action for immovable i
i (1905) 1 Bal. 146.
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1908. property “ claims in respect of mesne profits, ” should be held, bySeptember 7. reason of the fact that it is immediately followed by the words “ orWoOD arrears of rent,” to be restricted to mesne profits prior to theRbnton J. institution of the suit. The decree appealed against must be setaside, and the respondent’s action dismissed with costs here andbelow.
Appeal allowed.
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