Nagaratnam and Thassim.
1943Present: Hearne and de Kretser JJ.
NAGARATNAM, Appellant, and. THASSIM, Respondent.
,24—D. iC. Galle, 38,750.
Res judicata—Action withdrawn without permission—Fresh action instituted—
Civil Procedure Code, s. 406 (I).
In case No. 38,041 instituted by plaintiff on a mortgage bond thedefendant was made a party for the reason that he was a puisneencumbrancer.
In fact he was the, purchaser from the mortgagor on a deed, which wasregistered subsequent to the plaintiff’s mortgage and he had failed toregister his, address as required by section 6 (2) of the Mortgage Ordinance.
Before trial the plaintiff’s proctor informed the Court that he was not apuisne encumbrancer and moved that he be dismissed from the suit,which was done.
In the present _^tion'plaintiff asked for a declaration that the rightsacquired by the defendant were subject to the mortgage decree enteredin case No. 38,04r.
Held, that the plaintiff was barred by the decree in the mortgageaction from maintaining the present action.
1 (1900) 1 Q. B. 122.
HEARNE J.—Nagaratnam and Thassim.
PPEAL from a judgment of the District Judge of Galle.
H. V. Perera, K.C. (with him E. B. Wikremanayake and H. Waniga-tunga), for plaintiff, appellant.
L. A. Rajapakse (with him D. Abeywickrema), for defendant, respondent.
Cur. adv. vult.
February 1, 1943. Hearne J.—
The appellant was the plaintiff in case No. 38,041 of the District Courtof Galle, in which he obtained mortgage decree on bond P 1 put in suit.In that- case the respondent to this appeal was- the fifth defendant. Hehad been made a party for the reason that, according to the plaint,he was a “ puisne encumbrancer ”. In point of fact he was not. Hewas the purchaser from the mortgagor on a deed which was registeredsubsequent to the mortgage in favour of the appellant. No addresshad been registered by him (vide section 6 (2) of The Mortgage Ordinance).Before the hearing of the case the appellant’s proctor informed the Courtthat the respondent was not a puisne encumbrancer and moved thathe be dismissed from the suit. No permission to file a separate suit wasapplied for or obtained (section 406 (1) of the Civil.Procedure Code).The application was allowed, “ he was dismissed from the suit withcosts ”, and at the conclusion of the ex-parte hearing the position of therespondent was underlined by a further order that “ the fifth defendantis not bound by these proceedings ”. The terms of this order werereflected in the formal decree that was passed. At a later stage theappellant’s proctor applied to have the order dismissing the respondentfrom the suit set aside. By an order (D 3), dated April 30, 1941, theJudge declined to set aside his order on the ground that he had nojurisdiction to do so. The appellant then filed case No. 38,750 askingfor a declaration that the rights acquired by the respondent were subjectto the mortgage decree entered in case No. 38,041, and it was held thatthe decree in the latter debarred him from maintaining the former.It is from that order that he now appeals.
“We are not concerned with what the position would have been if thefifth defendant (respondent) had not been made a party at all in caseNo. 38,041 ”. WJth that view of the learned Judge I agree. Section 406 (2)of the Civil Procedure Code enacts that “ if the plaintiff withdrawfrom the action, or abandon part of his claim, without such permission(the permission of the Court referred to in sub-section (1))….
he shall be precluded from bringing a fresh action for the same matteror in respect of the same part ”. As I have already said, no permissionwas obtained. There is authority for saying that “ if there are severaldefendants to a suit and the plaintiff withdraws his suit against some ofthe defendants alone, without the liberty of suing again being reservedand obtained, a subsequent suit against them will be barred ”,
Permission is given when there are formal defects as, for instance,misjoinder of parties or causes of action, or where “ there are sufficientgrounds”. It would not, or rather should,not, be given where a party
HEARNE J.—Nagaratnam and Thassim.
on the averments in the plaint, has been properly impleaded as a defend-ant, and the plaintiff, however badly advised he may have been, in effectsays “ my pleading against the defendant cannot be sustained and Isubmit to my case,, in so far as he is concerned, being dismissed Insuch a case, and this is precisely such a case, the order of dismissal isconclusive. No “ permission ” by the Court could properly be 'given,even if permission, as was not the case, was asked for by the appellant.
It was argued on behalf of the appellant that by virtue of the provisionsof section 16 of The Mortgage Ordinance he was entitled to file a separatesuit against the respondent. Assuming that h'e was, he did not, and thebar to a fresh suit is not removed, because he might have done what he' did not do.
The appeal is dismissed with costs.
de Kretser J.—I agree.