049-NLR-NLR-V-12-MOHAMED-CASSIM-v.-SINNE-LEBBE-MARICAR-et-al.pdf
( )1909.
June 25.
Present: Mr. Justice Wendt and Mr. Justice Middleton.MOHAMED CASSIM v.SINNE LEBRE MARICAR et al.
D. C., GaUe, 8.254.
Res judicata—Dismissal of action owing to want of cause of action—.Second action—Civil Procedure Code, ss. 34, 207, and 406.-A judgment dismissing an action for declaration of title to landon the ground that the plaint disclosed no valid cause of action doesnot operate as a bar to a second action for the same relief.
A
CTION rei vindicatio. The plaintiff sought to vindicate histitle to an undivided two-thirds share of house No. 44, Church
street, in the Fort of dalle, alleging that the first defendant was inthe forcible and unlawful possession of the same, denying and dis-puting the plaintiff’s title to the same. The first defendant deniedthe plaintiff’s title and also pleaded that the plaintiff’s action wasbarred by reason of the decree in D. C., Gaffe, 5,265, dated July 3,1899, dismissing an action brought for the whole of the premisesby Sella Drama, a predecessor in title of the plaintiff, against firstdefendant.
The judgment in 5,265, which was pleaded as res judicata, was asfollows I am of opinion that the plaint discloses no valid causeof action .against defendant, as plaintiff is stiff in possession of thehouse, and her possession is not disturbed. The case is dismissed.”The decide entered was one of dismissal of the plaintiff’s action.
The District Judge (K. W. Macleod, Esq.) upheld the plea of resjudicata and dismissed the action.
In appeal,
Bawa, for the plaintiff, appellant.
Seneviratne (with him. H. A. Jayewardene), for the first defendant,respondent..
Cur. adv. vull.
June 25, 1909. Wendt J,—
I have had the advantage of perusing my brother Middleton’sjudgment, with which I agree. As he has set out the facts, it isunnecessary that 1 should recapitulate them. The District Judge,in upholding the plea of res judicata, proceeded upon the authority ofBaban Ajypu v. Gunewardene} which, he said, he was unable todifferentiate from the present case. There is, however, a fundamentaldistinction between the two cases. In Baban Appu o. Gunewardene1the decree pleaded in bar expressly declared Gunewardene the
‘■{1907) 10 N. L. B. 167.
•( 185 )
owner of the land, aud directed that Baban Appu be.„ejeoted fromit. It was therefore held, and I venture to think rightly held, thatBaban Appu could not again assert his own title to the land as he haddone in his former action.^In the present case the decree reliedupon did not declare anybody’s title, but on the face of it advisedlyforbore to deal with the title at all. The dismissal of an action forland, even when it comprises no declaration of the defendant’s title,may no doubt operate to make the title rev judicata against the plain-tiff, but that only occurs when the Court has dealt with the title,and decided that plaintiff had failed to establish his rights (I leaveout of view the cases in which an action is dismissed in toto fordefault of plaintiff taking some necessary step, and which mayperhaps constitute a bar under section 207, without the subject-matter of the action having been at all considered by the Court.
The decree in case No. 5,265 pleaded by the defendant in the presentcase no doubt dismisses the plaintiff’s action. It has, of course, to beread with the pleadings and the judgment. The pleadings showedthat plaintiff’s title was altogether (or at least as to anything morethan an undivided half of the property in question) denied by thedefendant. The proceedings at the trial are not in evidenco, but Ishall assume that plaintiff’s title continued in issue to the end. TheCourt, however, declined to adjudicate upon that title, because acondition precedent to its exercising jurisdiction over the title badnot been fulfilled, that is to say, the establishment of a “cause ofaction,” or reason for seeking the interference of the Court. Althoughnot exactly on all fours, such a case is somewhat analogous to thosein which the Court declines jurisdiction altogether, on the groundthat the subject-matter is outside the territorial or pecuniary limitsof its jurisdiction. It is beside the point to argue that it would atthe present day be held, and that in deciding case No. 5,265 theDistrict Judge, ought to have held, that plaintiff had a good cause ofaction, and that plaintiff ought to have appealed and had the casesent back for trial and determination of his title. Suffice it that theCourt held the other wav. Plaintiff is entitled to accept that judg-ment- as correct, and the only disability he incurred by his failure toappeal is that he is debarred from saying that, although in the fullenjoyment of all he claimed, he yet had a cause of action at that dateto obtain a declaration of his title.
1 wish to add that the effect of section 207 and the connectedsections of our Civil'Procedure Code would appear to be to renderit possible that the dismissal of an action may for ever bar theright asserted in it, although the Court- has not expressly or byimplication expressed any finding upon that right—res adjudicata,without any adjudie-atic at all. An instance of this would be thedismissal for default of taking some step ordered by the Court. InIndia, however, the construction put upon section 13 of the Code ofCivil Procedure of 1882 would seem to render such a result impossible.16-
1909.
June 26.
Wendt J.
1909.
June 28.
Wendt J.
( 186 )
In this connection respondent cited to us the case oi Esau Appuhamiv. Louis Appuhami,1 as to which I would say that I feel veiy greatdifficulty in holding that a plaintiff, whose title was expresslyadmitted by the defendant in his answer, would by the dismissal ofhis action for failure to add parties within the time appointed by theCourt be for ever barred by section 207 from setting up that titleas against the defendant.
I agree to the order proposed by my brother Middleton.Middleton J.—
This was an action to vindicate title to two-thirds share of a house,No. 44, Church street, Galle. The defendants denied the plaintiff’stitlei and pleaded, inter alia, that the plaintiff was estopped frombringing this action by reason of the decree in 1). C., Galle, 5,265,dated July 2r, 1899, which dismissed an action brought by theplaintiff’s predecessor in title against the defendant in the presentaction praying a declaration of title to the same house. That actiouwas dismissed by the District Judge on the ground that the plaint-disclosed no valid cause of action against the defendant, as plaintiffwas still in possession of the house, and her possession was notdisturbed. The District Judge upheld this plea, and the plaintiffappealed.
Now, according to English Law, there are three kinds of estoppel:
by matter of record; (2) by deed; (3) in pais (Stephen's Blackstone,Vol. I., p. 479, note, and Wharton's Imw lexicon), and an estoppelmeans a conclusive admission which cannot be denied or controverted.Estoppel by record is also of two kinds: by judgment in personamand judgment in rem. The doctrine of estoppel by record or resjudicata is founded, as Hukm Chand says (page 5), on the inaximnemo debet bis vexari pro nna et eadem causa, and exists, in my opinion,as a doctrine of the law long in force in Ceylon (see Ramanathan43-45, p. 35 ; Ramanathan 60-61, 62, p. 71; Ramanathan 72-76,p. 272), quite independently of the amplifications of it which havebeen grafted upon it by the Legislature by section 34, the note ofsection 207. and section 406of our Civil Procedure Code. By thoseamplifications a party may not only be estopped o-. the ground ofres adiudicata by a decision on the rights, remedies, and relief hehas actually claimed in an action, but also on the rights, remedies,and relief which he has omitted to claim or might have claimed uponthe sanfe cause of action in the former action, and may also beprecluded by withdrawal from or abandonment of an action withoutleave from bringing a fresh action.
Now, I am not aware that these amplifications are in force underthe English Common Law doctrine of'estoppel by record, and I aminclined to think they were introduced into Ceylon for the purposeof restraining the inherent predisposition to litigation exhibited by» (1901) 3 Dal. 236.
( 187 )
its law-loving inhabitants. I also take leave to think that section11, formerly section 13, of the Indian Civil Procedure Code does notgo quite so far as our sections 207 and 34, although in explanation 4it enacts that “ any matter which might or ought to have been madeground of defence or attack in such former suit shall be deemed tohave been a matter directly and substantially in issue in such suit.”
In Ibrahim Baay ei al. v. Abdul Rahim1 I enunoiated what Ideemed to be the essential facts whioh must be proved or admittedto constitute a valid estoppel by judgment in personam underEnglish Law, and those facts were that the decision in the first casemust be given by a court of competent jurisdiction, it must havebeen between the same parties or their privies, there must havebeen the same cause of action, the decision must have comprised adecision on the same question, and the question must have beendirectly in point in the former case. In my opinion these factsmust exist in cases which are covered by the amplifications I havealluded to in section 34 and in the note to seotion 207, save and exceptthat there is necessarily no finding on the same question, nor can ithave been directly in point in the fori'.! ir action if it was not thenraised. There must be, however, a court of competent jurisdiction,the same cause of action, and the same parties or their privies. Thedecision becomes an estoppel by res adjudicata as to rights andremedies the plaintiff might have raised or sought for, because hedid not raise or seek for them when he might have done so.
The present case, in my opinion, does not come under the terms ofeither section 34 or the note to section 207. Here the Judge in thefirst case, No. 5,265, in effect said:Assuming you have the right
and title you allege, you have shown on the pleadings no interferencewith your rights to justify the action.” apparently overlookingparagraph (13) of the plaintiff's plaint, which alleges a denial ofplaintiff’s rights quite sufficient under section 5 of the Code tojustify the action. The finding, if any, on the question of title wasin favour of the plaintiff, as the Judge acted on the assumption thatshe had the right she claimed. No question was raised as to theplaintiff here not being privy in estate to the plaintiff in the formeraction. I think, therefore, that the decision of the District Judge inNo. 5,265 was not res judieata of the plaintiff’s action in this case,.and that he is therefore not estopped by it, but entitled to proceedwith liis action. The judgment of the District Judge must thereforebe set aside with costs of appeal and the case, sent back for trialin due course, the costs in the District Court to abide the event ofthe action.
Appeal allowed; ease remitted.
»(1909) 12 N. L.R. 177.
196$.June 26.
Middleton
J.