022-NLR-NLR-V-43-NAMASIVAYAM-v.-KARTHEY.pdf
HOWARD C.J.—Namasivayam v. Karthey.
99
1942Present: Howard CJ. and Hearne J.
NAMASIVAYAM v. KARTHEY.289—D. C. Jaffna, 14,763.
Court of Requests—Failure to enter a claim in reconverttion—Distinct 'cmd
separate cause of action—Meaning of expression "for a like cause”—
Civil Procedure Code, s. 817.
The defendant in an action in the Court of Requests is bound to makea claim in reconvention on a distinct and separate cause of action in hisfavour in order to prevent such claim being barred by section 817 of theCivil Procedure Code.
The words “ for a like cause ” do not mean " for a matter arisingout of the same cause ”.
Perera v.' Silva (13 N. L. R. 339), followed.
Perera v. Pesonahamy (15 N. L. R. 438) and Marimuttupullai v. Suppiah-pulie (42 N. L. R- 326), not followed.
^^PPEAL from a judgment of the District Judge of Jaffna.
N. E. Weerasooria, K.C. (with him H. W. Thambiah), for the plaintiff,appellant.
N.Nadarajah for the defendant, respondent.
Cur. adv. vult.
January 13, 1942. Howard C.J.—
•
This is an appeal from a decision of the Additional District Judge ofJaffna dismissing with costs the plaintiff’s action in respect of a promissorynote dated June 13, 1935, to pay the sum of Rs. 250 with interest at 12per cent, per annum. On August 27, 1936, the defendant instituted in theCourt of Requests against the plaintiff and his wife an action for the recoveryof Rs. 72 in respect of money borrowed from the plaintiff. In this casewhich was dismissed, the plaintiff in the present case failed to enter aclaim for reconvention in respect of the amount due on the promissorynote that is the subject of this action. The learned Judge has held that,by virtue of section 817 of the Civil Procedure Code,-the plaintiff wasbarred from putting the note in suit in a subsequent action. Section 817is worded as follows : —
“ Where the defendant in an action for breach of a contract neglectsto interpose a claim in reconvention consisting of a cause of actionin his favour for a like cause, which might have been allowed to himat the trial of the action, he and every person deriving title theretothrough or from him are for ever thereafter precluded from maintainingan action to recover the same.”
Our attention has been invited to previous decisions of this Court.In Perera v. Silva'. A recovered judgment against B in the Court
* 13 .V. L. R. 339.
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HOWARD C.J.—Namasiuayam u. Karthey.
of Requests for advances and expenses made and incurred by A on anundertaking by B .to lease certain property. B failed to claim inreconvention the amount due to him from A on an on demand promis-sory note for less than Rs. 300. In an action by B ■ in the Court ofRequests against A on the note it was held by Grenier J. that theclaim was barred under section 817. On the other hand in Perera v.Pesonahami' it was held by de Sampayo A.J. that the defendant inan action is not bound to make a claim in reconvention on a distinct andseparate cause of action. In an action by the mortgagor to have the bondcancelled and discharged on the ground of payment, the mortgagee suc-ceeded on the issue of payment and the action was dismissed. A subse-quent action brought by the mortgagee on the bond was held not to bebarred by the first action. There is, therefore, a conflict of judicial opinion.In this connection it would appear that Grenier J’s decision in Perera v.Silva was not brought to the notice of de Sampayo J.
The matter has recently come up for consideration in the case ofMarimuttupullai v. Suppiahpulle In this case the plaintiff institutedan action against the defendant in the Court of Requests, Badulla, forgoods sold and delivered. The defendant had previously sued the plaintiffin the Court of Requests, Nuwara Eliya, for moneys lent to him on threeoccasions and also for the value of some cabbages. The plaintiff hadfailed to make the present claim in reconvention in the Nuwara Eliya case.De Kretser J., after giving due consideration to the meaning of thewords “ for a like cause ” which appear in section 817, held that the barplaced by section 817 of the Civil Procedure Code upon a defendant whofails to interpose in the action a claim in his favour against the plaintiffdoes not operate when the Court has no jurisdiction to entertain the claim.Ill coming to this conclusion de Kretser J. was faced with the conflict ofjudicial opinion in the two other cases I have cited. In interpreting themeaning to be given to the words “ for a like cause ” he stated that heinclined to the view that it was intended .that once a contract came beforethe Courts then all questions arising from that particular contract shouldbe settled in one case. He failed to see why the plaintiff should be allowedto plead the breach of a single contract and defendant be required tointerpose a claim he had on any other contract and why, if a defendantwere required to interpose a claim he had on any other contract, he shouldnot also be required to interpose any kind of claim he had against theplaintiff on any cause of action irrespective of whether it arose for breachof contract or not. I agree with de Kretser J. that section 817 restrictsthe ordinary right of a litigant to decide for himself whether he shouldmake a claim in reconvention or not. But 'the section is no doubtintended to avoid multiplicity of actions. Public policy requires thespeedy settlement of disputes that arise between parties. )l do not thinkthat in these circumstances there is any principle of law requiring theCourts to give the section a restrictive interpretation. Moreover it isimpossible to reconcile the interpretation which has been given to thesection by de Kretser and de Sampayo JJ. with the plain meaning of thewords “for a like cause”. It is straining the meaning of. these words
2 42 X. L. R. 320.
15 X. L. R. 43$.
HOWARD C.J.—Namasivayam v. Karthey.101
to interpret them to mean “ for a matter arising out of the same causeIn these circumstances I prefer the interpretation given to these words byGrenier J. in Perera v. Silva' to that of de Sampayo and de Kretser JJ.in the other two cases I have cited.
Our attention was also invited to the case of Silva v. Perera ~ whichCounsel for the appellant contends supports his argument. There is,however, nothing in the judgments of the learned Judges who decidedthis case to justify this point of view. The question for decision waswhether the defendant could put forward a certain claim in reconvention.In holding that the District Judge was right in rejecting this claim,Lascelles C.J. stated that the Civil Procedure Code did not remove thelimitations which existed under the Roman-Dutch law as stated in Kotze’sVan Leeuwen, Vol. II., p. 410, as follows : —
“ The thing claimed in reconvention must be of the same right,kind, and quality as the matter claimed in convention, because theyare as it were set off and extinguished by compensation against eachother, which cannot take place in things that are in any waydissimilar.”
The Chief Justice goes on to refer to a statement of Bonser C.J. inBabapulle v. Rajaratnam’ that he was not aware of any authority forthe proposition that a claim in reconvention must arise out of or beclosely connected with the original claim and states that there is nothingin this expression of opinion inconsistent with the limitations laid downby Van Leuwen. De Sampayo J. also states as follows : —
“ The claim in reconvention need not, of course, be based on, orconnected with, the transaction or matter out of which the plaintiff’scause of action arises, but it seems to me that it should in its nature becapable of being set off against, or adjusted with, the plaintiff’s claim.”
It has been further urged that the claim in the Court of Requests casewas against the plaintiff and his wife jointly and hence the former couldnot pul forward his claim on the note in reconvention. I am of opinionthat this fact would not bar the plaintiff putting forward his claim in re-convention. Whatever he recovered would be set off against half theamount recovered by the defendant on the claim against his wife andhimself. The Court could have pronounced a final judgment in the sameaction both on the original and on the cross-claim as required by section75 (e) of the Civil Procedure Code. For the reasons I have given, theappeal is dismissed with costs.
Hearne J.—I agree.
Appeal dismissed.
' 13 V. J.. h‘. 33!/.* 17 .V. L. It. iOH.
3 -v. a. /?. /.