Silva v. Per era
1952Present : Swan J.
P. M. SILVA, Appellant, and L. B. M. J. PERERA, Respondent
S. C. 52—C. B,. Kanadulla, 3,850
Execution—Mandatory decree—Application for enforcement of it—Separate ■ actionnot maintainable—Damages claimable—Civil Procedure Code, ss. 334, 335,344, 839.C
A separate action cannot be maintained when it claims relief for which theappropriate remedy is an application for execution under section 334 of theCivil Procedure Code.
Ismail v. Ismail (1920) 22 N. L. R. 190, doubted.
Vindictive damages cannot be awarded under section 335 cf the CivilProcedure Code in an application made under section 334 for enforcement ofa mandatory decree.
,/^.PPEAL from an order of the Court of Requests, Kanadulla.
H. W. Tamhiah, for the defendant appellant.
W. D, Ghjptasekera, for the plaintiff respondent.
Cur. adv. vult.
(1950) 51 N. L. R. 496.
SWAN J.—Silva v. Perera
November 7, 1952. Swau J.—
This appeal raises an important question as to whether rules of CivilProcedure can be brushed aside in order that substantial justice maybe done. Justice must always be done, it mu3t always be substantial,but it must be done according to law.
Undoubtedly the recently introduced Section 839 of the Civil ProcedureCode copied from Section 151 of the Indian Code states that:—
“ Nothing in this Code shall be deemed to limit or otherwise affect
the inherent power of the Court to make such orders as may be necessary
for the ends of justice, or to prevent abuse of the process of the Court. ”
But do the inherent powers of the Court extend so far as to ignore orset at nought the rules laid down in the Code ?
The facts relevant to this appeal are as follows. In case No. 3,523 ofthe Court of Requests of Kanadulla the plaintiff had sued the defendantfor declaration of title to a right of cartway, for the removal of analleged obstruction and for damages. That case was settled, and of consentdecree was entered declaring the plaintiff entitled to a right of footpathfrom the point B to the point A marked in plan.No. 4162 dated 20- 2. 50and made by D. D. Gunasekera, licensed Surveyor. The decree orderedthe defendant to “ remove the brick wall at the point B due south toa width of 3 feet to permit the plaintiff to enter his rear garden throughthe said gap ”. The decree also provided that there should be no costsor damages.
On 10- 9- 51 the plaintiff instituted this action bearing No. 3,800 ofthe same Court pleading the decree in the earlier case and alleging thatthe defendant had refused to allow him the use of the footpath, andhad failed and neglected to remove the brick wall as ordered and decreed.
The defendant filed answer admitting the terms of settlement andthe decree in the earlier case but denying that he had failed to complytherewith. He denied that the plaintiff had suffered any damages, andspecially pleaded that the decree was res judicata and precluded theplaintiff from claiming damages.
On the date of trial it was admitted that the defendant had removedthe brick wall only on 12. 11-51. There isa note in the record, apparentlymade by the learned Commissioner, that the only matters for deter-mination were damages and costs. The case proceeded to trial on thefollowing issues :—
What damages is the plaintiff entitled to as a result of thedefendant refusing to remove the brick wall as agreed in caseNo. 3'523 ?
Was the plaintiff placed in possession of the footpath in termsof the decree in case No. 3,523 ?
Hoes the decree incase No. 3,523 operate as res judicata barringthe plaintiff from claiming any. damages ?
SW AN J.—Silva v. Peseta.
Certain evidence was led for the plaintiff. The defence called noevidence, but authority was cited in support of the contention that theplaintiff was precluded from claiming damages, and the learnedCommissioner reserved his. judgment.;
On 12- 12- 51 the learned Commissioner delivered an “ order ” in whichhe upheld the defendant’s plea of res judicata, but proceeded to treatthe action as an application under Section 334 of the Civil: ProcedureCode and purporting to act under Section 335, awarded the plaintiffa sum of Rs. 300 as “ pecuniary loss ” sustained by him by reason ofthe defendant’s default in obeying the decree in case No. 3,5&3. In sodoing the learned Commissioner said he was relying on Ismail v. Ismail '.
In that ease Bertram C.J. (with whom Sampayo J. agreed) held .thatwhen an action is brought claiming relief for which the appropriateremedy is an application under Section 334 the Court has power todeal with the action as though it were such an application.
The Indian case which was cited to the learned Chief Justice andwhich he followed as establishing a salutary principle was Biru Mahatav. Shyama Churn Kawas a. In that case a suit had been brought forrestitution of property wrongly taken in execution of a decree in aprevious suit. It was held that a separate suit did t not lie because •Section 244 of the Code (corresponding to Section' 344 of our Code)required that all questions relating to the execution of a decree shouldbe determined by order of the Court executing the decree and not byseparate action. It should be noted that the District Munsif found forthe plaintiff, and that it was only on appeal that the question was raisedfor the first time whether the suit was not barred by Section 244. TheAppellate Tribunal took the view that inasmuch as the suit had beeninstituted in the Court which had jurisdiction to execute the decree inthe previous suit it might be regarded as an application under Section 244.
I am doubtful whether the order made in Ismail v. Ismail1 is correct.
I have not been able to find a single case in which it has been followed.But assuming that the principle therein laid down is sound I find thatthe facts of that case are not even remotely similar to the facts thatconfront us here. In that case the defendant in the previous action hadbeen ordered to effect certain repairs to a boiler within a specified period.The defendant failed to execute the repairs and the District Judgepunished him for contempt of Court. The plaintiff then brought hissecond action claiming damages because the defendant had not compliedwith the order of the Court in the previous action. A preliminary issuewas raised as to the maintainability of the second action and the DistrictJudge answered this issue in the affirmative. On appeal it was held thatthe action could not be maintained. This Court also pointed out thatthe District Court had no power to punish the defendant for contempt.The case was sent back so that the District Judge might treat the actionas though it had been an application under Section 334. I think thisCourt was merely indicating what was the plaintiff’s appropriate remedy.What happened when the case went back to the lower Court I do notknow. I imagine that action would have been taken in the earlier suitand not in the second suit which this Court held to be not maintainable.
5 (1920) 22 N. L. R. 190.
(1895) 22 Calcutta 484.
Somainathie v. John Fernando
Even if the learned Commissioner felt in the present case that he washound by the decision in Ismail v. Ismail1 he should have made orderdismissing this action and dealt with the plaintiff’s claim for relief nowtransformed into an application under Section 334 in case No. 3,523.
In any event the order awarding the plaintiff Rs. 300 as “ pecuniaryloss ” cannot be sustained. The award appears to me to be more in thenature of vindictive damages than pecuniary loss which must be strictlycompensatory. The plaintiff himself gave no evidence. The only witnesscalled was the plaintiff’s conductor. Although he stated that greatinconvenience and damage resulted from the defendant’s act he didnot ret out any specific damage or pecuniary loss and it transpiredthat the “ great inconvenience ” was that the lavatory labourer hadto go through the house.
I set aside the order appealed from and direct that the plaintiff’saction be dismissed. I would, however, make no order as to the costsof the action which was clearly misconceived, or of this appeal. '
Order set aside.