058-NLR-NLR-V-57-M.KANDAVANAM-et-al-Appellant-and-V.-KANDASWAMY-et-al-Respondents.pdf
1955Present : Gratiaen, J., and Swan, J.31. KAXDAVAXA3C cl at., Appellants, and V. K AND AS WA3IV',
cl a(., Respondents
A'. C. 203—D. C. Point Pedro, 3,053
Civil Procedure—Claim by a ilrjcndanlayain.il a co-dejcndnnt for substantive rctirj—Jurisdiction oj Court to entertain it.
lies judicata—Partition action—Withdrawal of action—Consent by some of thedefendants—Failure to obtain leave to institute fresh action—Effect on rightsof parlies in a subsequent action—Civil Procedure Code, ss. 207, 406.
(i) The Civil Procedure Code docs not empower n Court to entertain substan-tive claims for relief preferred by defendants infer se. Therefore, if A sues 13for declaration of title to certain property and makes C, a co-owner, a partydefendant in order to ensure a more complete and effectual adjudication ofthe issues arising in the action, C cannot, while supporting A's allegations
I
against 13, ask for a declaration of rights and an award of damages oh his ownaccount against J3.
(ii) A instituted action No. 1 for the partition of a land on the basis that itwas exclusively owned in common, from a common source of title, by him andthe defendants one of whom was 13. C intervened claiming for himself on un-divided 2/9 share of tho land. A decided to avoid a contest on the issue ofC’s claim. Po. obtained, with 13's consent, permission from the Court tol ‘‘ withdraw the action ” but did not ask for liberty to institute, a fresh notion.Accordingly, tho trial Judge entered a decree dismissing A’s action with costsin favour of C.
About a year later the siieeessors-iu-litlo of J3 instituted action No. 2 againstC in respect of the identical land claiming declaration of title to the 2/9 sharuwhich C had claimed in action No. 1. A was also joined in action Xo. 2 as adefendant in order to ensure a more complete and effectual adjudication ofthe issues arising in the action.
Held, (a) that the failure of A to obtain liberty under section JOG of thoCivil Procedure Code to bring fresh proceedings at the time when he “ with-drew ” from the partition action (Action No. 1) was fatal to any frosh attemptby A to reagitate a claim which come into conflict with C’s title to an undivided2/9 share.
(b) that tho plaintiffs in action No. 2, being privies of 13 who had consentedto fho unconditional withdrawal of action No. 1, were also precluded fromassorting that the title which had passed to them from 13 prevailed overtho title of C.
-^^-PPEAL from a judgment of tho District Court, Point Pedro.
C. ThinrjaUnrjatn, Q.C., with'l*. Arulambahtm and C. Ckellappah, forlhe 1st and 2nd defendants appellants.
K.O. Wikra.inana.ija.ke, Q.C., with A. Aagendra, for the plaintiffsrespondents.
11. 11'. Tantbiah, with A. Xtujendra, for the 3rd and 4th defendantsrespondents.
Cur. adv. vull.
1I-lvxx- •
2J. X. 13 531SI-1.532 (2/56)
October 28, 1955. Gkatiaek, J.—
%’ .
_ The plaintiffs sued the 1st and 2nd defendants in this action for a^declaration of titlo to an “undivided 18 lachams share” of a definedallotment of land, 37 lachams in extent. This allotment had originallyformed part of a larger land called Thaddanthoddain (47 lachams inextent) out of ■which two small portions had passed into the possessionof third parties by purchase. According to the plaintiffs, tho entire37 lachams allotment to which this action relates belonged to themselves,the 3rd and 4th defendants in the proportions of 18, II, and S respectively.They alleged that the 1st and 2nd defendants, who had no title to the land,obstructed their possession as co-owners on 10th December 1950.Accordingly, they claimed, in addition to a declaratory decree in respectof their title on this basis, an order for the ejectment of the 1st and 2nddefendants ancl damages. The 3rd and 4th defendants were joined inthe action in order to ensure a more complote and effectual adjudicationof the issues arising in tho litigation.
The 1st and 2nd defendants are husband and wife. She disclaimedany share in the land on her own .account. The 1st defendant, on theother hand, claimed to be the owner by inheritance of an undivided2/9 share ; according to lrim, the collective lights of eo-ownership) assertedby tho plaintiffs and the 3rd and 4th defendants must be restricted tothe balance 7/9 share. On tills basis, he repudiated the allegation thathe and his wife were trespassers, and resisted the claims for ejectmentand damages.
(1930) 41 X. L. it. SOS.
(1911) 12 X. L. 11. 475,
The 3rd and 4th defendants file a joint answer supporting the plaintiffs’allegation that the 1st defendant had no share in the 37 lachams allotment.They too asked for a declaration of their respective rights and an awardof damages on their own account against tho 1st and 2nd defendants.These latter claims should, of course, have been rejected by the learnedJudge ex inero mot it. Tho Civil Procedure Code does not empower aCourt to entertain substantive claims for relief preferred bj- defendantsinter se. It is no doubt permissible, and sometimes necessary, to ad-judicate upon competing claims of one set of defendants against the other,but only in so far as would enable the Court to determine whether therelief asked for by the plaintiff (or against him upon a claim in reconven-tion) ought to be granted. Fernando v. Fernando 1 and Banda v. Banda ?.Put the formal decree cannot award substantivo reh'ef except in favourof the plaintiff or against him. Accordingly, the claim of the 3rd and4tli defendants for a declaration of title and for damages against tho 1stand 2nd defendants could only have been entertained in soparate pro-ceedings. The question of stamp duty is also involved. These objectionsgo beyond a complaint of mere irregularity. I would therefore holdthat the Court had no jurisdiction to enter a decree granting substantiverelief to either the 3rd or the 4tli defendant against the 1st and 2nddefendants.
With regard to the plaintiffs’ claim against the 1st and 2nd defendants,the learned Judge decided, upon his assessment of the oral and documen-tary evidence, that they had established their joint right to an undivided18 lachams share of the land and that the outstanding shares belongedexclusively to the 3rd and 4th defendants in the proportions set out inthe plaint. It follows that in his opinion the 1st defendant and his wife,being trespassers, were liable to bo ejected at the instance of theplaintiffs..
The judgment on questions of fact is not completely free of misdirection,but I do not consider the errors complained of t'o be sufficiently subs-tantial to justify our reaching an opposite conclusion. In my opinion,however, the learned Judge wrongly rejected the objection that theplaintiffs were precluded in law from asserting any title which came intoconflict with the 1st defendant’s title to a 2/9 share.
The 1st defendant’s plea, which is equivalent to a plea of res judicata,was based on the outcome of an earlier litigation in which he, the present3rd defendant, a man named Ramalingt m, (who is the predecessor intitle of the present plaintiffs) and certain others were parties. In orderto avoid confusion I propose, in setting out the relevant details of thoseproceedings, to describe the parties to those earlier proceedings byreference to their respective designations in the present litigation.
On 21st December 194S the 3rd defendant instituted an action forthe partition of this identical land in accordance with a chain of titlewhich coincides precisely with that on which he and the plaintiffs now-re Iy. His plaint specifically averred that " no other persons (had) anyright or interest in the land sought to be partitioned ”. Ramalingamentered an appearance and obtained permission to file his answer, ifnecessary, after the completion of the preliminary survey. In duecourse, the 1st defendant intervened and objected to a partition on thebasis asked for by the present 3rd defendant. He was accordingly addedas a party defendant, and filed an answer claiming an undivided 2/9share upon a title precisely" similar to that which he asserts in the presentaction.
The nature of the dispute arising for adjudication between the present.3rd defendant and the present 1st defendant in that earlier litigationwas perfectly clear : the crucial issue was whether the 1st defendanthad title to an undivided 2/9 share, and was to that extent entitled toobject to a partition on the basis that the land was exclusively ownedin common by the 3rd defendant and other members of the group claimingtitle from a common source. But the 3rd defendant decided to avoida contest on this issue. He obtained, with Ramalingam’s consent, per-mission from the Court to “ withdraw the action ”, but did not ask forliberty to institute a fresh action. Accordingly, the trial Judge entereda decree on 20tli October 1949 dismissing the 3rd defendant’s actionwith costs in favour of the present 1st defendant.
The present plaintiffs and the 4th defendant admittedly had no interestsin the land prior to 20th October 1949. Very shortly afterwards,however, a number of transactions took place. On 1st March 1950,Ramalingam purchased an undivided share which Ithe 3rd defendant
had previously allocated (o A. Vallipuram (a party to the partitionaction belonging to the same group as himself). A few monthslater Ramalingam, by a scries of conveyances, parted with all his un-divided interests in the property : vide – P21 in favour of the 1st plaintiff,P22 in favour of the 2nd plaintiff, and P23 in favour of the 4th defendant.The 4th defendant- also purchased “ 2 undivided laehams ” from the3rd defendant.
It will be observed that all the interests previously claimed by the3rd defendant have now been allotted by the plaintiffs either to the 3rddefendant himself or to the 4th defendant l>y virtue of purchasescompleted subsequent to the date of the decree in the partition action.Similarly, all the interests previously allotted by the 3rd defendant toRamalingam and to Vallipuram arc now alleged to have passed either tothe plaintiffs or to (he 4th defendant. On the other hand, the 1st-defend-ant asserted in both proceedings that he had legal title .to an undivided2/0 share, but did not dispute on cither occasion that the balance 7/0share was held by the competing group. Jn other words, he concedesthat the entirety of this balance 7/9 share belongs to the plaintiffs, the3rd defendant and the 4th defendant in the proportions JS: 11: S.The scope of the dispute in both proceedings was therefore identical.
The present action commenced on 22nd February 10.31. The plain-tiffs and the 4th defendant, as successors in title to Ramalingam, areadmittedly his privies. The 4th defendant is, for the same reason, aprivy of the 3rd defendant from whom he purchased a part of the titlepreviously asserted by the 3rd defendant.
As there had been no formal adjudication in the earlier action regardingthese competing claims, the doctrine of red judicata, in the strict senseof the term, docs not apply. What then was the effect of the. “with-drawal ” of that action by the 3rd defendant with Ramalingam’s consent,and of (he consequential decree entered by the Court dismissing hisclaim for a partition of the land to the exclusion of the 1st defendant ?
The 3rd defendant ‘'’withdrew” from the partition actionunder the provisions of section 400 of the Civil Procedure Code which(notwithstanding certain doubts expressed in former limes) is nowrecognised as being applicable to actions for the partition of property.As the Judicial Committee of the Privy Council observed in Pomunmuali v.AruMiigam1, such an action, “though in form an action for partition,is for the recovery of land ”.
•Section 40G is in the following terms :—
“ 40G. (I) If, at any time after the institution of the action, theCourt is satisfied on the application of the plaintiff (a) that the actionmust fail by reason of some formal defect, or (6) that there arc sufficientgrounds for permitting him to withdraw from the action or to abandonpart of his claim with liberty to bring a fresh action for (he subject-matter of the action, or in respect of the part so abandoned, theCourt may grant such permission on such terms as to costs or otherwiseas it thinks fit.
If the plaintiff withdraw from the action, or abandon part of hisclaim, without such permission, he shall be liable for such costs asthe Court may award, and shall be precluded from bringing a freshaction for the same matter or in respect of the same part. •
Xothing in this section shall be deemed to authorise the Courtto permit one of several plaintiffs to withdraw without the consent ofthe others. ”
•' • "
The underlying principle must be examined in the light of the express!injunction contained in section 207 that “ no plaintiff shall hereafter bonon-suited ”. In former days, both here and in England, a plaintiffwho found that his case was going, or was even likely to go, against himcould elect to be nonsuited. By this simple device, he reserved to himselfthe right to harass his opponent all over again by Instituting anotheraction relating to the same dispute. In order to remedy this mischief;Order 41 Rule 6 of the Rules of the Supreme Court, 1875, of Englandwas introduced whereby :
“ any judgment of non-suit, unless the Court or Judge otherwisedirects, shall have the same effect as a judgment upon the merits for thedefendant. ”
Rule 6 was later superseded by Order 26 Rule 1 relating to the ‘ dis-■ continuance ” of actions, but it has been authoritatively decided thatthe new Rule places the same fetters upon litigants. The true principleis that “ after a plaintiff has proceeded with his action to a certain pointand brought the defendant face to face with him, he is not then entitledto escape the determination of the issue by a side door. He is no longerdominus litis. The Judge then has the power of saying whether theaction shall be discontinued or not …. ” and “ when a plaintiff
has gone on to such a point that he has brought his adversary face to facewith him, it is only by the leave of the Judge that he can withdraw soas to have the power of bringing a fresh action for the same cause. ”Fox v. Star Newspapers (1S9S) 1 Q. B. 036 C. A., affirmed by the Housoof Lords in (1900) A. C. 19., where Lord Halsbury observed, “ When acause once conics into Court, and where the plaintiff offers no supportto his action, there must be a verdict for the defendant. ”
Section 406 of our Code, read with the words of prohibition in section207, has achieved the same result in this country. “ The policy is thatan action once instituted must be prosecuted until it is determined bya judgment upon the matter in dispute, and a plaintiff who withdrawsfrom an action or abandons part of his claim will not be permitted tobring a fresh action for the same matter or in respect of the same part,unless he does so with the permission of the Court which may be grantedwhen it appears (a) that the action must fail by reason of some formaldefect or (6) that there are sufficient grounds for permitting the plaintiffto withdraw from the action .or to abandon part of his claim. ” per GarvinJ. in Annamalay Chelly v. Thornhill1. – Indeed, the Court’s power togrant liberty to institute fresh proceedings is its.elf strictly limited, being
1 {1932) 34 N. L. It. 3S1 at 3SS.
conditional upon a judicial decision, based bn proper material, that oneor other of the alternative situations (a) and (6) does in fact exist.•
The 1st defendant’s contention is that the failure of the 3rddefendant to obtain liberty under section 40G(1) to bring fresh
proceedings at the time when he “ withdrew ” from the earlier actionis fatal to any fresh attempt by the 3rd defendant or his privy the 4thdefendant to reagitate a claim which conies into conflict with the 1stdefendant’s title to an undivided 2/9 share ; and that the plaintiffs,being privies of Ramalingam who had consented to the withdrawal of (hataction without “ liberty to reinstitute ”, are equally precluded from assertingthat the title which has passed to them from Ramalingam prevails overthe title of the 1st defendant.
■Yc were referred by Counsel to certain earlier decisions which havebeen enumerated in a footnote A J. Some were directly concerned withthe application of the doctrine of res judicata to partition actions. Ininy opinion, the true principle is no longer in doubt. Every decree forpartition involves a determination that each person found to be a co-owncr had established a title which was good against the whole world.Rut in particular cases disputes also arise as to the merits of competingclaims between parties inter se. It- therefore follows that a plea of resjudicata arising in connection with a decree entered after adjudicationin a partition action must always be answered by examination of theparticular matters in issue which had actually been decided. If, therefore,an action had been dismissed on the merits in view of an adjudicationas to a particular point of contest, that adjudication certainly operateshs res judicata. On the other hand the order of dismissal may proceedfrom other grounds—e.g., because the parties had failed to establish atitle sufficient to justify a decree in rem. In that event, the rule of resjudicata would probably not apply.
Rut what if the plaintiff in a partition action (after the pleadingshave raised a specific point of contest as to the validity of his claim tohavo the land partitioned on a basis inconsistent with the title assertedby one of the defendants) avoids the contest by withdrawing uncon-ditionally from the action ? In such an event the particular issue whichwas raised by the defendant would in my opinion constitute the “ matter ”which the plaintiff is precluded by section 40G (2) from reagitating in thecourse of subsequent litigation against the same adversary. If theplaintiff proposes, in spite of his withdrawal, to “ live to fight another
day ”, ho must obtain the Court’s permission under section 406 (I) toretain that privilege. If no such permission is granted, the statutory-bar created by section 406 (2) comes into operation, and the withdrawalfrom tho action has tho same effect as a judgment upon the merits infavour of the contesting defendant in respect of the particular matterin dispute.
I am therefore satisfied that, in view of his withdrawal from the parti-tion action which he had instituted, the 3rd defendant and hi3 privytho 4th defendant are irrevocably precluded from asserting against the1st defendant a title which is in any way inconsistent with the positionthat tho 1st defendant was in truth a co-owner to the extent of anundivided 2/9 share.
There remains the question whether section 406 (2) also stands in theway of the plaintiffs’ claim (as purchasers from Ramalingam) in oppositionto the title previously asserted by the 1st defendant. To this I wouldreply that, just as tho 3rd defendant’s withdrawal without liberty ”had the effect of a judgment upon the merits in favour of tho 1st defend-ant, the statutor}- bar equally operates against Ramalingam whoconsented to the withdrawal. The reason is that, if the earlier actionhad been dismissed on the merits in favour of the 1st defendant, theadjudication would necessarily also have involved a decision in his favouragainst Ramalingam. In that event the doctrine of res judicata betweenco-defendants, as laid down in Fernando v. Fernando (supra) and Bandav. Banda (supra) would have applied. In the case now under considera-tion, Ramalingam, by consenting to the 3rd defendant’s action beingwithdrawn unconditionally, had in effect agreed to a result which wasas effective in laiv as a judgment on the merits in favour of the 1st defendanton tho matter in dispute between the 1st defendant, the 3rd defendant,and Ramalingam.
The issues arisingfor decision in the present action can now be answered.The plaintiffs are precluded from obtaining a declaration of title againstthe 1st defendant on the basis that they and the 3rd and 4th defendantsare tho only co-owners of tho land in dispute, and the 1st defendant isentitled to a declaration against the plaintiffs (which will also bind the3rd and 4th defendants) that he owns an undivided 2/9 share in the land.Tho plaintiffs arc, however, entitled to a declaration that the balanceundivided 7/9 share belongs to them and the 3rd and 4th defendantsin the proportions IS : 11 : S respectively. As tho 1st defendant is aco-owner of the land, the decrees entered against him and his wife forejectment and for damages, must be set aside. I would set aside thojudgment under appeal and order a decree to be entered for a declarationof title in accordance with the decision which is summarised in thi3paragraph of my judgment. The plaintiffs and the 3rd and 4thdefendants must pay the 1st and 2nd defendants their costs inboth Courts. .
Swan, J.—I agree.
Appeal allowed.