019-NLR-NLR-V-46-ODIRISHAMY-Appellant-and-ELARIS-Respondent.pdf
68
DE KBETSEB JOdirishamy and Elaris.
1944Present: de Kretser J.
ODIRISHAMY, Appellant, and EliARIS, Respondent.
220 C. R. Gampaha 1,872
Rea Judicata—Action on lease—Allegation of ouster and claim for damages—Case settled—Subsequent action for restoration of possession—CivilProcedure Code, s. 34.
In £. B. Gampaha, 1,684, the plaintiff, alleging that he was entitled topossess certain rubber trees on a lease, complained of an ouster by thedefendant and ashed for damages sustained by him and continuingdamages till date of judgment.
The defendant denied plaintiff's right to the lease, which he said wasvoid, hut at the trial admitted the plaintiff's claim and consented topay damages.
In the present action the plaintiff alleged that the defendant hadrefused to give up possession of the land and claimed that he be placedand quieted in possession and that the defendant be ejected,—
Held, that the present action was not barred by section 34 of theCivil Procedure Code.
A
PPEAL from a judgment of the Commissioner of Requests,Gampaha.
V. Perera, K,C. (with him R. C. Ponseka), for the defendant,appellant.
A. Rajapakse, K-C. (with him S. R. Wijayatilake), for the plaintiff,respondent.
Gut. adv. vult.
December 18, 1944. de Kretser J.— *-
The only question debated at the hearing of this appeal was whetherthe palin tiff was barred by section 34 of the Civil Procedure Code frommaking his present claim by reason of the claim he successfully made-inC. R. Gampaha, case No. 1,684.*
In that case the plaintiff set out in his plaint the manner in whichhe became entitled on a lease to possess certain rubber -trees during hislease and,- complaining of an ouster by the defendant a few days after theplaintiff had entered into possession, he asked for damage already sustainedand continuing damages – until the date of judgment. He did not askfor a declaration of his right to possess on- his lease and consequentlynot for.damages until he was placed in possession.
The defendant filed answer admitting the title of the lessors and thelease to plaintiff but pleaded that the lease was void as it was executedduring the pendency of a partition action. He also' denied that theplaintiff entered into possession*or that he had suffered any damages orhad a cause of action or that he (the defendant) was in unlawfull possession.- At the trial issues were raised on these lines and immediately afterwardsthe record, reads “ case settled at this stage. Of consent judgment forplaintiff as prayed fo fixing damages at Rs. 19.25 per mensem as amatter of settlement. Plaintiff fo have costs of this class. Enter decreeaccordingly ”.
DE KRETSEit J.—Odirishamy and Elaris.
The plaintiff believing that his right was admitted went to take-possession on the very next day, when the defendant refused to givepossession. The plaintiff then brought the present action setting outtitle and the decision in the previous case and claimed damages and thathe be placed and quieted in possession and that the defendant be ejected.The defendant filed an answer making the same pleas as in the' previous.case and in addition pleaded the earlier action as a bar and also that the•Court had no jurisdiction as the subject matter of the action was worthits. 1,500. The same issues as before were raised and in.addition the.following: —
Is the plaintiff’s action barred, by the decree in C. R. Gampaha,No. 1,684 ?
If so, can he claim (a) ejectment ?(b) damages ?
Under any circumstances is the plaintiff estopped by the decree
in C. R. Gampaha,'No. 1,684, from claiming damages, if any, in excessof Rs. 19.25 per mensem ?•'
The learned Commissioner held in the plaintiff’s favour but reduced the.damages claimed. The defendant appeals.
It is clear that the defendant is taking advantage of a legal 'defenceand would have no defence on the merits, and none was attempted:No case exactly in point' was cited to me. The learned Commissioner•decided the case on the footing that a new cause of action had accrued tothe plaintiff after the decision of the earlier case. It was conceded thatif this view be correct the judgment was unimpeachable. The argumentfor the defendant was based on the assumption that the position betweenthe parties was the same as it had been before the previous action, viz., thedefendant was in possession denying the plaintiff’s right to possession and,therefore, there was no new cause of action. I do not .think this view iscorrect or possible, for clearly the position was not the same.
In the earlier case the plaintiff alleged an ouster and the defendantdenied the plaintiff’s right on the lease, which he alleged- was~void, but’atthe trial he conceded the plaintiff’s claim and consented to pay himdamages. The cause of action in the earlier case had not been ’ merelythe refusal to give possession but a refusal on a certain footing. There>was no express decree declaring the plaintiff entitled to possess on hislease or placing him in possession but his claim to damages could onlyhave been admitted and costs fixed on the implied admission that theplaintiff was entitled to possess on the lease. The plaintiff was entitledto assume that the defendant would, thereafter, yield him possession andwhen he refused to yield a fresh cause of action arose. The position isonly slightly different from the case of Wimalasekere v. Dingirimahatmaya 1.There the plaintiff was declared entitled to a land after a contest but nodecree of ejectment had been prayed for or granted. The plaintiffbrought a fresh action and the previous case was held not to be a bar-under section 34. So, in this case the plaintiff' on the date of the. trialof the first case had his claim conceded. He was entitled to possessionwhether the decree says so or not, and he was entitled to take possessionon the admission impliedly made. Both parties claim from the same
1 39 N. L. JR. 25.
70
HOWAjRD C.J.—Taniby Lebbe and Vavuniya Police.
source and both were aware that the plaintiff’s rights on his lease couldnot be contested. The defendant was probably trying to wear the plaintiffdown into surrendering his lease. Section 34 is based on the maximthat no one should be vexed twice regarding the same matter. It is &provision for the defendant’s benefit and he cannot plead his own wrongand claim a benefit therefrom. He alone is to blame if he is being sueda second time. The provision is a salutary one but it must be so usedand its scope so confined within certain recognized limits and principles,as not to take suitors unfairly by surprise and so as to do as little injusticeas possible. The onus is on the defendant to show that the causes ofaction were identical and any doubt ought to go against him. In myopinion the present action is not barred. The appeal is, therefore,dismissed with costs.
Appeal dismissed.