010-SLLR-SLLR-1985-V2-MANSIL-v.-DEVAYA.pdf
46
Sri Lanka Law Reports
{1985} 2 Sri L. R.
MANSIL
v.DEVAYA
COURT OF APPEAL.
H.DE ALIMS. J.'AND 6. P. S. DE SILVA. J.
A. 417/78 (Fj! "
D C MOFCRAGALA 272/1.
SEPTEMBER 4. 1984.
Ret vindicatio action – Withdrawal of previous suit without reservation – Civil ProcedureCode, section 406 – Whether subject matter of the two actions ■was thesame – Burden of proof.
The plaintiff sued the defendant for declaration of title, ejectment and damages. Thedefendant took up the prefimmary objection that the suit was barred by the provisions of' section 406 of the Civil Procedure Code because he.had earlier, filed a possessory suitfor recovery of the same land and withdrawn it without being granted the reservation ofthe right to bring a fresh action on the same subject matter. The withdrawal of theearlier action was because the plaintiff had been refused leave to amend his plaint on.the 14th date of trial. The defendant had produced only the proceedings of the dayIwhen the previous action was dismissed to support his plea under s. 406.
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Mansil v. Devaya
47
Held-
The requirement of permission of Court to bring a fresh action is necessary whetherthe withdrawal is due to a formal defect or to the existence of sufficient grounds.
The withdrawal of the previous action was.not because.of a formal defect.
i ■. ■1••i■•
There was no proof that the subject matter of the two suits was;the same, since -(a) the plaint and answer of the previous suit were not before court.
the previous suit was a possessory action under section 4 of the PrescriptionOrdinance and the present action was a rei vindicatory suit.
The burden of proving'that the subject matter of the present suit Was the same as' that of the previous suit was on the defendant as he relied on thetiar uhider section
406 of the Civil Procedure Code.
Cases referred to:
Kandavanam at al v. Kandaswamy
Jayawardena v. Amolishamy(1965) 69 NLP 49.
Aly Muhammad v. Karim Baksh AIR 7933 Lahore 943.
14) Kanapathipillai v. Kandiah (1942) 44 NLP 42.
Silva v. Appuhamy (1912) 15’:NLP 297.
De Silva v. Goonetileke <1931) 32 NLP 217. 219.
APPEAL from the District Court, of Moneragala.
P. Nanayakkara for plaintiff-appellant.
H. M. P. Herath for defendant-respondent.'
Cur. adv. vult.
October 19, 1984.
P. S. DE SILVA, J.
The plaintiff filed this action on; 26.7.76 for a declaration of title to aland called Ranavyarawa Kele alias Mahaiweliyaya Kele, for theejectment of the defendant and for damages. In his plaint he set outhis title and pleaded that the defendant unlawfully entered the land ona date between 9.5.70 and 13.5.70. The defendant in his amendedanswer of 8.6.77 denied the plaintiff's ciaim to title, set up title inhimself, and further averred that the plaintiff cannot maintain thisaction in view of his unconditional withdrawal of the previous actionNo. 7457/L which was between the same parties and in respect ofthe same subject matter.
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Sri Lanka Law Reports
[1985} 2 Sri L R.
At the trial two preliminary issues of law were raised on behalf of thedefendant, but for present purposes only one of such issues isrelevant. That issue reads thus –
'Can the plaintiff have and maintain this action as he withdrewaction No. 7457/L in respect of the same subject matter withoutresenring his right to bring a fresh action V
It was agreed between the parties that the earlier action was inrespect of the same land and that the parties too were the same. Attiie hearing before the District Judge no oral evidence, was fed and theonly document produced in regard to action No. 7457/L was theproceedings of 11.5.76, marked D1. It is important to note thatneither the plaint nor-the answer in action 7457/L was-produced.After hearing the submissions made, on behalf of the parties, theDistrict Judge, answered the above issue against the plaintiff anddismissed the plaintiff's action. The plaintiff has now appealed againstthis judgment.
The circumstances in which the plaintiff withdrew the previousaction on 11.5.76 are seen frorn the proceedings of that date (D1).The plaintiff moved to amend the plaint as there was an error in thedescription of the land in dispute. The application was objected to bythe defendant. Since this was the 14th date„of .trial and the plaintiffhad ample time to amend his plaint, the trial Judge refused theapplication to amend the plaint. The plaintiff was unable to proceed totrial and his Attorney-at-law withdrew the action stating that he would‘bring a fresh action'. Thereupon the District Judge made orderdismissing the plaintiff's action with costs.
It seems to me, that the District Judge when he dismissed theplaintiff's action did not grant the plaintiff permission to bring a freshaction in terms of section 406 of the Civil Procedure Code. All that theproceedings show is that the Attorney-at-law for the plaintiff informedCourt that he, would file a fresh Action.
Mr. Nanayakkara, Counsel for the plaintiff-appellant submitted that
section 406 of the.Civil Procedure Code did not require the permission
of Court to bring a fresh action since the withdraws I of the action was
on the ground of a 'formal defect' – vide s, 406 (1) (a). In my view,
this submission is not well founded.
*
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Mansil v. Devaya (G, P. S. De Silva, J.)
49
Subsections (1) and (2) of section 406 read thus –
* (1) If, at any time after the institution of the action, the court issatisfied on the application of the plaintiff –
that the action must fail by reason of some formaldefect, 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 costs orotherwise as it thinks fit.
If the plaintiff withdraw from the action, or abandon part of hisclaim, without such permission, he shall be liable for such costsas the court may award, and shall be precluded from bringing afresh action for the same matter or in respect of the same part."
On a plain reading of the section, I am of the opinion that therequirement of permission of court to bring the fresh action governsnot only section 406( 1 ){b) but alsp section 406( 1 )(a). As observed byGratiaen, J. in Kandavanam et al v. Kandaswamy etal.(1)
'Indeed, the court's power to grant liberty to institute freshproceedings is itself strictly limited, being conditional upon a judicialdecision, based upon proper material that one or other of thealternative situations (a) (6) does in fact exist." (The emphasis ismine)
Counsel's next submission was that the 'subject matter' of the twoactions is not the same. As stated earlier, the defendant had failed toproduce either the plaint or the answer in the previous action No,7457/L.
The District Judge, however, in the course of his judgment statesthat action No. 7457/L was a possessory action. The present actionis a rei vindicatio action. Therefore the question that arises for decisionis whether the ‘subject matter' is the same in the two actions.
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Sri Lanka Law Reports
[1985] 2 Sri L. R.
The meaning of the expression 'subject matter' in section 406 ofthe Civil Procedure' Code arose for consideration in Jayawardene v.Amolishamy (2). Samarawickrema, J. in an illuminating passage at499 expressed himself thus –
“The term 'subject matter' . .does not, in my view.
. mean the property in respect of which an action is brought. Inconsidering an almost identical provision in the Indian Code of CivilProcedure in AlyMuhammed v. Karia Bakah.{3) ShadfLal. C J.. whowas later a member of the Judicial Committee of the Privy Council,stated 'the phrase 'subject matter' is not defined in the Code but itis clear that it does not mean property, but has reference to the rightin property which a person seeks to enforce'. In a passage whichhas been cited with approval by Howard, C.J., in Kanapathipiilai v.Kandiah, (4) Chitaley states,'the term 'subject matter' means the.plaintiff's cause of action for his suit and a suit for a different causeof action is, therefore, not barred under this rule even though thesuit may relate to the same property. Conversely; a suit based onthe same cause of action as the first one is barred'. I do not thinkthat cause of action in this passage has the meaning given to thatterm in our Code by the definition. It is used there in a wider senseand meant both the right asserted and its denial. I am of. the viewthat the term 'subject matter' includes the facts and circumstancesupon which the plaintiff's right to the relief claimed by himdepends". (The emphasis is mine)
The facts and circumstances upon which a plaintiff relies for relief ina possessory action are different from those relied on in a rei vindicatioaction. The remedy of possessory action is one given by section 4 ofthe Prescription Ordinance. It gives a right to bring a possessory actionon dispossession otherwise than by process of law and furtherprovides that the action must be brought within one year ofdispossession. Wood Renton, J., in Silva v. Appuhamy{5) observed –
"The proviso to the section enacts that the other requirements ofthe common law in regard to possessory actions are not affectedand the old condition as to possession for a year and a day beforeouster is, therefore, still in force."
Proof of title is not a requirement in a possessory action.
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MansH v. Devaya (G. P. S. De Silva. J)
5.1
In a rei vindicatio action, on the other hand, ownership is of theessence of the action ; the action is founded on ownership.Macdonell. C. J. in De Silva v+Goonetileke (Full Bench)(6) set out theprinciple thus
'There is abundant authority that a party claiming a declaration oftitle must have title himself. To bring an action rei vindicatio theplaintiff mist have ownership actually vested in him. (1 Nathan p.
362, s. 593)The. authorities unite in holding that the
plaintiff must show title to the. corpus in dispute and that if hecannot, the action will riot lie.*
What is more, it was the defendant who relied on the statutory barenacted by section 406. The burden of proving that the 'subjectmatter' of the two actions was the same was clearly on him.Samarawickrema, J. in Jayawardene v. Arnolishamy (supra)observed
'It is incumbent upon a party who’makes a plea of res judicata toplace before Court, material necessary to show what the matterswere in dispute in the earlier action and that matters in dispute in theaction under consideration are the’same*.
Similarly, the burden was on.the defendant in the present action .tosatisfy the court that by reason of section 406. the plaintiff wasprecluded from bringing the action. In my view; he failed to dischargethat burden, for he produced neither the plaint nor the answer in theprevious action. In the absence of the pleadings filed in the earlieraction, the defendant failed to place before court the materialnecessary to support his plea that the present action was barred bythe provisions of section 406 of'the Civil Procedure Code. I
I accordingly hold that the trial Judge was in error in answering tnepreliminary issue in favour of the defendant. The appeal is allbwed, thejudgment and decree of the District Court are set aside and the case issent back for trial upon the other issues that arise. The defendant-respondent must pay the plaintiff-appellant the costs of theproceedings in the District Court as well as the costs of appeal.
H. DE ALWIS, J. – I agree.
Appeal allowecTand case sent back for trial to be proceeded with.