054-SLLR-SLLR-2003-V-2-NANDAWATHIE-AND-OTHERS-v.-TIKIRI-BANDA-MADUMALALI.pdf
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Majubudeen and others v Simon Perera
(Edirisuriva, J.)'.
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NANDAWATHIE AND OTHERSv
TIKIRI BANDA MUDALALI
COURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
CA 286/96
D.C. POLONNARUWA 3722MARCH 20, ANDJUNE 30, 2003
Civil Procedure Code, sections 147 and 207 – Action by original permit holder -Dismissal of action – Action by nominated successor – Res judicata – RomanDutch Law principles – Original permit holder missing – Preliminary issues.
An action instituted by the original permit holder Poola seeking a declarationof title and ejectment of the defendant-respondent was dismissed on thebasis that the plaintiff was absent.
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The present action was instituted by the nominated successor of Poola on thebasis that the original permit holder had been listed missing.
The trial court answered the preliminary issues in favour of the defendant-respondent and concluded that the order of dismissal of the earlier action oper-ated as res judicata.
On Appeal –
Held:
The District Judge has to exercise his discretion to try preliminaryissues only if they are pure questions of law that go to the root of thecase.
There was no evidence before court to establish that Poola was theoriginal permit holder and that the original plaintiff (in the presentaction) was nominated as successor upon the death of Poola, and thatthe original plaintiff succeeded due to operation of the LandDevelopment Ordinance. There were no admissions recorded.
The trial court could not have decided the preliminary issues, until the'other issues were proved.
The principle of res judicata to apply, the second action must be
between the same parties;
same subject matter; and
same cause of action
It has not been proved that the original plaintiff (in the present action) isa privy or a heir of Poola.
The decision in the earlier action was one of dismissal as the where-abouts of Poola the plaintiff was not known. No evidence had been ledto establish his death. His heirs could not have continued the earlieraction because they may have to wait for 7 years to apply the pre-sumption that he was dead. Therefore the dismissal of the action is nota final judgment.
The two causes of action are different.
The order made in the earlier case amounts to an order made withoutcompetent jurisdiction.
It is a rule of law that a solemn judgment on any matter standing proveritate accipituar, but this effect cannot attach to a judgment givenwithout a hearing.
APPEAL from the judgment of the District Court of Polonnaruwa.
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Nandawathie and others v Tikiri Banda Mudalali
(Dissanavake. J.)■
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Case referred to:
Mutukrishna v Gomes et al – (1994) 3 Sri LR 01
Ayerv Changarapillai – 2 NLR 17
Pure Beverages Ltd., v. Shanil Fernando (1997) — 3 Sri LR 202
Mendis v Himappola – (1843-1853) Ramanathan Report 88
Herath v Attorney-General – 60 NLR 193
Dharmadasa v Piyadasa Perera – 64 NLR 249
Ananda Kasturiarachchi with U. Abeysiriwardena for substituted plaintiff-appel-lant.
Manohara de Silva for defendant-respondent
Cur.adv.vult.
October 10, 2003DISSANAYAKE, J.
The question that has been argued in this appeal is whether, 01the dismissal of the previous action bearing No. 2972 of the DistrictCourt of Polonnaruwa, which had been instituted by the permitholder of permit No. 234 dated 14.3.1946, operates as “ ResJudicata” against the original plaintiff in this action whose presentaction is based on, being the nominated successor of the said per-mit.
It is interesting to note that the certified copies pertaining to theearlier action filed, bears out that it was an action instituted by theoriginal permit holder Ranthilaka Pedige Poola, seeking declaration 10of title, ejectment of the defendant-respondent from the landdescribed in the schedule to the plaint, for ejectment of the defen-dant-respondent and damages.
On 16.01.1988 on the plaintiff Ranthilaka Pedige Poola beingabsent and attorney-at-law Iddawela informing Court that the plain-tiff Poolas whereabouts were not known, his action bearing No.2972 has been dismissed.
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■ The original plaintiff in the present action instituted this actionon the basis that the original permit holder Poola had been listedmissing as a result of flash floods that was caused following thedestruction of the dam of the Kantale tank. As a result of disap-pearance of Poola, the prosecution of action bearing No. 2972which had been instituted to eject the defendant-respondent whohad unlawfully encroached onto the land in suit, had not been pos-sible.
The original plaintiff in the present action who is said to be thenominated successor of the said permit bearing No. 234 had insti-tuted the present action for declaration of title, ejectment of thedefendant-respondent and damages.
It is to be observed that the land in suit, in the present actionand the earlier action is the same.
At the commencement of the trial after recording of issues, the• learned District Judge had decided to take up the legal issues per-taining to the question whether the principle of res judicata wasapplicable.
Both parties had been requested to tender their written sub-missions. The attorney-at-law for the defendant-respondent hadtendered certified copies of the plaint, answer, replication and jour-nal entries of the earlier action bearing No. 2972, marked V1, alongwith his written submissions. The learned District Judge by hisorder dated 05.06.1996 had answered the preliminary issues infavour of the defendant-respondent and had concluded that theorder of dismissal of the earlier action bearing No. 2972 operatedas res judicata against the present action and had proceeded todismiss the action.
In the arguments of the appeal before this Court, learnedcounsel appearing for the plaintiff-appellant contended that thelearned District Judge was in error when he dismissed the action ofthe substituted plaintiffs-appellants action on the following groundsnamely:-
(a) that Court could not have tried issued Nos. 7 to 11 aspreliminary issues, in view of the other issues recorded as well asthe pleadings before the Court.
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(b) that the doctrine of res judicata does not apply where thecauses of action are different.
It is of significance to observe that section 147 of the CivilProcedure Code permits Court to try issues of law as preliminaryissues, if the action can be disposed of on answering the saidissues.
Disposal of such’ issues as preliminary issues depend on the 60nature of the issues. If they are purely based on questions of lawwhich goes to the root of the case, then they must be tried firstbefore the other issues. However, if they are mixed questions offact and law, generally they shall not be tried as preliminary issues.
The District Judge has to exercise his discretion to try preliminaryissues only if they are pure questions of law, that go to the root ofthe case Muthukrishna v Gomes 0) and Ayerv ChangarapillaiS2')
However if questions of fact have to be decided before decid-ing a certain issue of law, then the Court should not take up suchan issue as a preliminary issue, even if it is an issue of law, which 70has the effect of finally disposing of the action.
If an issue of law arises in relation to a fact or factual positionin regard to which parties are at variance, that issue cannot andought not to be tried first as a preliminary issue -of law PureBeverages Ltd v Shanil Fernando <3>.
In the case of Pure Beverages Ltd v Shanil Fernando (supra)
U. de Z. Gunawardane, J. at page 209 observed:-
“As a final note, it also needs to be stressed that in a trial of anaction the question as to how or in what manner the issues have tobe dealt with or tried is primarily a matter best left to the discretion 80of the trial judge, and a Court exercising appellate or revisionarypowers ought to be slow to interfere with that discretion except per-haps, in a case where it is patent or obvious that the discretion hasbeen exercised by the trial judge not according to reason butaccording to caprice.”
It is of significance to note that in the plaint of the presentaction, it was pleaded in paragraph 2, that on 14th March 1946, theadditional Government Agent of Polonnaruwa issued permit bear-ing No. 234 to Ranthilaka Pedige Poola in respect of the land
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described in the schedule to the plaint. In paragraph 3 of the plaint, 90it is pleaded that the original permit holder R.P. Poola during his lifetime, on 02.11.1979, nominated the original plaintiff as the succes-sor. In paragraph 4 it is pleaded that the said Poola died during thedestruction of th Kantale Dam and the original plaintiff had becomethe new permit holder.
By paragraph 3 the answer, the defendant-appellant hadexpressly denied that R.P. Poola was the permit holder and furtherit had been denied that the original plaintiff had been nominated, asthe successor and that he had become the permit holder.
Thus the parties had been at variance on the above matters. iooAs a matter of fact at the commencement of the trial these mattershave been put in issue, in issue numbers 1 to 5.
Therefore it is pertinent to observe that the Court could nothave decided issues Nos. 7 to 11, as preliminary issues, withoutfirst determining issues Nos. 1 to 5.
Further it is to be observed that there were no admissionsrecorded in respect of the above matters. There was no evidencebefore Court to establish R.P. Poola was the original permit holderand that original plaintiff was nominated as successor and upon thedeath of R. P. Poola that the original plaintiff succeeded, due to 110operation of the Land Development Ordinance.
Therefore it appears that the learned District Judge could nothave decided issues Nos. 7 to 11 until issues Nos 1 to 5 have beenproved. Thus it could be reasonably assumed that the learnedDistrict Judge has proceeded to answer issues Nos. 7 to 11, on theassumption that the matters out in issue by issues No. 1 to 5 havebeen proved.
The literal meaning of the term “Res Judicata" is that the mat-ter has been decided and the effect of decisions and of interlocuto-ry proceedings Vide page 297. “Voet commentary on the Pandects 120by Percival Gane” Vol VI. Under Roman law, Res Judicata means,the termination of a controversy by a judgment of a Court in oneway or the other.
Under Roman Dutch Law, Res Judicata has been describedas a matter in which an end has been put to disputes in a declara-
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tion of a Judge by absolution or discharge or adverse judgment.
Vide page 297 “Voet, Commentary on the Pandects by PercivalGane” Vol VI. It is stated that by res judicata it is meant terminationof controversy by the judgment of a Court. This is accomplishedeither by an adverse decision or by discharge from liability.130
As enunciated by Voet, for the doctrine of Res Judicata tooperate, there should be three requisites, namely,
same person
same thing and
same-cause,
The rationale of these doctrine is based on the maxim that it isin the interest of the state to have an end to litigation. The maximthat no man should be vexed twice for the same cause of action isbased on this principle.
The principle of res judicata is embodied in the Civil Procedure 140Code in section 207 of the Civil Procedure Code.
Section 207:-
All decrees passed by the Court shall, subject to appeal, when
an appeal is allowed, be final between the parties, and no
plaintiff shall hereafter be non-suited.
Explanation:-
Every right of property, or to money, or to damages, or to reliefof any kind which can be claimed, set up, or put in issue betweenthe parties to an action upon the cause of action for which theaction is brought, whether it be actually so claimed, set up, or put 150in issue or not in the action, becomes on the passing of the finaldecree in the action, a res adjudicata, which cannot afterwards bemade the subject of action for the same cause between the sameparties (emphasis is added)
Therefore for the principle of res judicata to apply the secondaction must be:-
between the same parties
same subject matter
same cause of action.
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R.S.R. Coomaraswamy in the law of evidence Volume I at 160page 528, 11 B.4 under the heading “Necessary Constituents ofRes Judicata" states: In order to establish a plea of res judicata, thefollowing constituents must be established.
The former action must have been a regular action;
The two actions must be between the same parties ortheir representatives in interest (privies);
The previous decision must be what in law is deemedsuch;
The particular judicial decision must be what in law is
deemed such;170
The previous judgment must be a final judgment;
The same question or identical causes of action musthave been involved in both actions;
The judicial tribunal pronouncing the decision must havehad competent jurisdiction in that behalf;
The judgment should not have been obtained by fraud orcollusion;
If it is a foreign judgment, it should have been passed inaccordance with the principles of natural justice;
Let me now consider whether the above constituents are isoapplicable to the facts of the present matter before me.
Regular action
Certified copy of the plaint and the answer of case No. 2972reveal that the former action was a regular action. It is seen that thecase present action too is a regular action.
Same parties or their privies:-
In the earlier action bearing No. 2972 was by R.P. Poola whowas the lawful permit holder.
In the present action the substituted plaintiff-respondent is thelawful permit holder by being nominated ■ successor on the pre- 190sumption that R.P. Poola has died.
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Nandawathie and others v Tikiri Banda Mudalali
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The defendant-appellant has not led any evidence to establishthe relationship of the original plaintiff in the present action and R.P.Poola and had thereby failed to establish that the original plaintiff inthe present action is a privy or a heir of R.P. Poola on permit No.
234 the original plaintiff’s name appears as the nominated succes-sor.
The previous decision must be what in law deemed such
Action has been dismissed on the previous occasion.
The particular judicial decision must have been in fact pro- 200nounced as alleged.
Action bearing No. 2972 had been dismissed, by pronounce-ment of Court.
The previous judgment must be a final judgment
The decision in case No. 2972 was one of dismissal of theaction made on 06.01.1988 as the whereabouts of R.P. Poola, theplaintiff in that case was not known.
No evidence has been led as to when the destruction ofKantale tank bund took place and as to from what date R.P. Poolahad gone missing. Since no evidence to establish his death was 210forthcoming his heirs could not have continued with case No. 2972because, they may have had to wait for 7 years to apply the pre-sumption that he was dead. This was in 1988 and before theapplicability of the present amendment with regard to presumptionof death of missing persons.
Therefore the dismissal of the action by the District Court isnot a final Judgment.
The same question or identical causes of action musthave been involved in both actions:
The former action was based on the defendant-appellant hav- 220ing entered into possession of the corpus with the leave and licenseof R.P. Poola, and his refusal to leave the premises after beingrequested to do so and had been instituted as a declaration of titleand ejectment of the defendant-respondent. Whereas the presentaction action had been instituted seeking a declaration of title and
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ejectment of the defendant-respondent who is alleged to be dis-turbing the original plaintiff’s title.
Therefore it is manifest that it is not the same question or iden-tical causes of action that are involved in both actions.
The judicial tribunal pronouncing the decision must have 230had jurisdiction in that behalf:
The order of dismissal of plaintiff’s action has been madewhile Poola was represented by a counsel. Further 06/01/88 wasnot a trial date and Poola was not expected to be present in per-son. He has had a registered attorney-at-law on record. Yet hisaction was dismissed. The said order made by the District Courtamounts to an order made without competent jurisdiction.
The Judgment should not have been obtained by fraud orcollusion.
No fraud or collusion is alleged in obtaining the order in the for- 240mer action.
If it is a foreign judgment, it should have been passed inaccordance with the principles of natural justice:-
This is not relevant to the facts of the matters presently beforeus.
The former action bearing No. 2972 was dismissed as thewhereabouts of the R.P. Poola had not been known. In the case ofMendis v Himappola <4> where the plaintiff was absent twice on thedates of trial and the case was dismissed twice, Stark, J. observed“Interest reipubliacae at sit finis lithium is a good maxim; It follows 250out the very nature of society, for unless, there is an end to litiga-tion rights would for ever remain uncertain and no man would everenjoy that scrutiny of person and property without some degree ofwhich society could not subsist, and it may be added, in proportionto the enjoyment of which in any society civilization advances orhas opportunity to advance.
Accordingly it is a rule of law that a solemn judgment on anymatter standing pro veritate accipituar. But this effect cannot attachto a Judgment given without a hearing of the case which appearsto be the predicament in which the present suit is placed. If the 260
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judgment in the previous case were in respect of the absence of theplaintiff and so of the nature of non-suits without evidence taken inthe cause, they do not amount to res judicata, which is properlydefined as legal judgment on the same point between the same ■parties, on the same ground or media concluded after argument orconfession.”
In Herath v Attorney-General it was concluded byBasnayake, CJ. that section 207 of the Civil Procedure Code willtherefore apply only to decrees pronounced after there had beenan adjudication on the merits of a suit and not to decrees entered 270under section 84 of the Civil Procedure Code.
Since no exparte trial was held in the former action bearingNo. 2972, the decision in Dharmadasa v Piyadasa Perera<6) doesnot apply to the action presently before me. In that case the defen-dant failed to appear on a trial date and the Court passed a decreenisi in terms of the section 85 of the old Civil Procedure Codewhich was made absolute in terms of section 86. The defendantinstituted action subsequently and res judicata was tried as a pre-liminary issue. Gunasekera, J. at page 251 distinguishing Herath vAttorney-General (supra) said.” there is an ex parte trial held and 280there had been adjudication of merit in the ex parte trial. Therefore,he proceeded to hold that the decree absolute for default that hasbeen passed against the defendant is one which section 207 of theCivil Procedure Code applies and can, therefore operate as resjudicata in a subsequent action between the same parties inrespect of the subject matter.”
In the facts before me, there was no ex parte trial held. Themerits of the case was not considered by the learned DistrictJudge. Court did not give it’s mind to the rights of the parties at all.
In the previous action on R.P. Poola being absent the action was 290dismissed. The Court did not make a determination in respect ofrights of Poola.
In the line of the foregoing reasons, I am of the view that thelearned District Judge had erred on the following matters;
(a) The decision to take issues Nos. 7 to 11 as preliminaryissues, and
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(b) his answers to the said preliminary issues in the affirma-tive.
Therefore I set aside the order of the learned District Judgedeciding to take issues No. 7 to 11 as preliminary issues, and I set 300aside the answers given to issues Nos. 7 to 11. I further set asidethe order of dismissal of the action made by the learned DistrictJudge. I order the learned District Judge to have trial, “de novo.”Parties are free to raise fresh issues or adopt the issue's alreadyframed.
The appeal of the plaintiff-appellant is allowed with costs fixedat Rs. 5000/-.
SOMAWANSA, J. – I agree.Appeal allowed; trial de novo ordered.