066-NLR-NLR-V-43-MARIKAR-et-al.-v.-PUNCHI-BANDARA-et-al.pdf
Marikar v. Punchi Bandura.
261
1942
Present: Howard C.J. and Keuneman J.
MARIKAR et al. v. PUNCHI BANDARA et al.
184—D. C. Avissawella, 2,880.
Appeal—Action on usufructuary mortgage—Claim in reconvention by defend-ant—Judgment for plaintiff for reduced amount—Dismissal of claim inreconvention—Appeal by plaintiff—Right of defendant to raise questionof counter-claim—Civil Procedure Code, s. 772.
In an action on a usufructuary bond the defendant claimed in recon-vention damages for injuries caused to the property mortgaged.
Judgment was entered for the plaintiff for a smaller sum than thatclaimed by him. The defendant’s claim in- reconvention was dismissed.
Held (on an appeal by the plaintiff), that the defendant was not entitledto raise the question of his counter-claim unless he has filed a cross-appeal or given notice of objection under section 772 of the CivilProcedure Code.
iHE plaintiffs sued the defendants to recover a sum of Rs. 6,500,
together with legal interest from date of claim on a mortgagebond, which provided that in lieu of interest on the said sum plaintiffswere to take the produce of two-thirds of the rubber plantation standingon the mortgaged premises. The defendants admitted that a sum ofRs.'6,500 was due on the bond but claimed in reconvention—(a) thesum of Rs. 3,126.65 on the ground that plaintiffs had appropriated theproduce of the remaining 1/3 share of the rubber plantation and (b) thesum of Rs. 9,128, being damages for injuries caused wantonly and mali-ciously to the rubber plantation by bad tapping. The learned DistrictJudge gave judgment to the plaintiffs for the sum of Rs. 2,500.
H. V. Perera, K.C. (with him H. W. Jayewardene), for plaintiff, appel-lants.—There is no justification for the reductions made in the principalamount' by the District Judge. This is an usufructuary mortgage and,in such a case, where the profits taken in lieu of interest are uncertain,reductions of this nature should not be made. (Vide Burcjre Vol. 3,p. 197; also Wille, Mortgage and Pledge in South Africa, page 173.)
N.E. Weerasooria, K.C. (with him A. C. Alles), for defendant, respon-dents.—We do not seek to justify this part of the judgment. The issue ondamages has been decided in our favour. There is evidence to show thatwhen the property was handed over to the appellants it was in a goodcondition. Therefore it is the duty of the mortgagee at the end of themortgage to return the property in as good a condition as when he gotinto possession. Failing this, he must pay the assessed damages (3Burge 205,206).
H. V. Perera, K.C., in reply.—Respondents cannot maintain theirclaim for damages. Appellants’ claim is a liquid claim and the re-,spondents cannot in the circumstances claim in reconvention an un-liquidated amount by way of damages. Even if they could do-so theycannot claim damages now since they were not awarded damages in thelower court and have failed to file a cross-appeal. Section 772 of theCivil Procedure Code has no application here ; even if it did, the requisiteseven days’ notice has not been given.
T
262
HOWARD CJ.—Morikar v. Punch-i Bandara.
(N. E. Weerasooria, K.C., cites Rabot v. de Silva1.) That case has noapplication here. The judge has held against the respondents on theissue of damages and therefore they should have given notice undersection 772. If respondents’ claim can be made at the end of themortgage then it is premature at this stage. The mortgage has notended yet, appellants have only sought to enforce their rights on theexisting mortgage. 3 Burge 205,206 refers to the mortgagee-in-possessionknown to English law and not to our usufructuary mortgagee. Henceit has no application here.
Cur. adv. vuIt.
March 17, 1942. Howard C.J.—
In this case the plaintiffs appeal from a judgment of the DistrictJudge of Avissawella entering judgment for the plaintiffs for Rs. 2,500and ordering that the costs be divided. The plaintiffs claimed a sum ofRs. 6,500, together with legal interest thereon from the date of claim ona mortgage bond dated September 24, 1925. The bond contained aproviso that in lieu of interest on the said sum of Rs. 6,500 the plaintiffswere to take the produce of two-thirds of the rubber plantation standingon the mortgaged premises. In pursuance of this proviso the plaintiffsappropriated the produce of two-thirds of the rubber plantation of themortgaged premises in lieu of interest. The defendants admitted that asum of Rs. 6,500 was due on the bond but claimed in reconvention '(a)the sum of Rs. 3,126.65 on the ground that the plaintiffs have appro-priated the produce of the remaining one-third share of the rubberplantation and (b) the sum of Rs. 9,128 being damages for injurieswantonly and maliciously caused to the rubber plantation by theplaintiffs by bad tapping. The defendants claimed that judgment shouldbe entered in their favour for the sum of Rs. 5,714.65 together with costs.
In giving judgment in favour of the plaintiffs for only Rs. 2,500 thelearned Judge, whilst dismissing the defendants’ claim in reconvention,restricts the claim of the plaintiffs to this amount on the ground that theplaintiffs were only entitled to interest at a fixed amount. To use hisown words he “ went through the accounts very carefully ”. As theresult of this scrutiny he has made an elaborate calculation of the profitsmade during the period when the produce was appropriated by theplaintiffs. From these profits he has deducted certain amounts asinterest at fixed rates. The balance he has deducted from the principalsum due to the plaintiffs on the mortgage bond. In this manner andafter allowing interest sometimes at 12 per cent, and sometimes at 9 percent, and making capital reductions after stated intervals, he reduces'the amount due to the plaintiffs on the mortgage bond to Rs. 2,500.No legal principle is advanced by the learned Judge in support of thisstrange method by which the defendants’ liability on the mortgage bondhas been calculated. Nor has Mr. Weerasooria been able to put forwardany argument in its support. This part of the learned Judge’s judgmentcannot, therefore, be upheld and the plaintiffs are entitled to the sum ofRs. 6,500 on the mortgage bond.
Mr. Weerasooria has, however, contended that the defendants are• entitled to deduct from the sum of Rs. 6,500 an amount in respect of
■ 8 N. L. R. 82.
HOWARD CJ.—Marikar v. Puwchi Bandara.
263
damages by reason of injuries caused to the rubber plantation by badtapping. In this connection Mr. Weerasooria has invited our attentionto that portion of the learned Judge’s judgment dealing with the claimput forward by the defendants with regard to this aspect of the case.Although finding against the defendants, the learned Judge has statedthat “ the plaintiffs cannot shirk all responsibility ”. Moreover, Mr.Weerasooria maintains that the evidence of Mr. de Mel and otherwitnesses, including that of the 2nd plaintiff, establishes that theplantation has been damaged by excessive tapping. In reply to thiscontention Mr. Perera maintains that, if the defendant’s desire to contestthe finding of the Court with regard to the claim in reconvention, thematter must be raised by cross-appeal or in. accordance with theproviso to section V72 (1) of the Civil Procedure Code which is worded asfollows : —
“ Any respondent, though he may not have appealed against anypart of the decree, may, upon the hearing, not only support the decreeon any of the grounds decided against him in the Court below, buttake any objection to the decree which he could have taken by wayof appeal, provided he has given to the appellant or his proctor sevendays’ notice in writing of such objection. ”
The respondents have neither cross-appealed nor have they given theappellants notice that they take any objection to that part of the appealwhich dismissed their claim in reconvention. Mr. Weerasooria hasinvited our attention to the case of Rabot v. de Silva' which he maintainsis an authority for the proposition that notice of objection is not required.In this case the District Judge held that the fifth and sixth defendantscould not succeed to the estate of Vincent Perera on the ground thatthey were his children as the result of his adulterous intercourse withthe third defendant. The plaintiffs’ claim was dismissed on othergrounds. The plaintiffs appealed and the Court held that the fifth andsixth defendants, notwithstanding they had not appealed nor filedobjections under section 772 (1) of the Civil Procedure Code, couldchallenge the District Judge’s decision as to their paternity and contendthat they were not adulterous bastards and support the decree appealedfrom by claiming the shares devised to them on that ground. In comingto this conclusion, Middleton J. subjected section 772 (1) to a minuteexamination. He stated that the section divides itself into two parts,comprising support of-and objection to the decree. No notice is requiredexcept upon an objection to the decree. In Rabot v. de Silva (supra)there was no objection to the decree, but the respondents desired tosupport it on the ground that they were the children of one Salman Appu,on which ground the District Court decided against them. It seems tome that this decision has no application to the present case. Issue (7)was worded as follows:-—
“ Did the plaintiffs wantonly and maliciously damage the rubbertrees by bad tapping? ”
1 s N: L. R. $2.
264
HOWARD C.J.—Marikar v. Punehi Sandora.
The learned Judge answered this issue in the negative and hence theclaim in reconvention set up by the defendants was dismissed. TheJudge, however, by some process of reasoning apparent only to himself,but which had no connection with the defendants’ claim in reconvention,reduced the claim of the plaintiffs from Rs. 6,500 to Rs. 2,500. I do notthink it can- be argued that the respondents have come to this Court tosupport the finding of the lower Court. They object to the finding onlsuue (7) and the dismissal of their claim in reconvention. In thesecircumstances I am of opinion that they should have filed notice ofobjection in accordance with section 772 (1) of the .Code. Having failedto do so they cannot raise this issue on the plaintiffs’ appeal.
The decree of the District Court is therefore set aside and the plaintiffsmust have judgment as claimed. The defendants’ claims in reconventionare dismissed and the plaintiffs must have their costs in this Court and theCourt below.~
Keuneman, J.—I agree.
Appeal allowed.