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Present: Mr. Justice Wendt and Mr. Justice Wood Renton.PALANIAPPA v. GOMES et al.
D. C., Kalutara, 3,697.
Civil Procedure Code, ss. 418, 207, 5—Dismissal of action on account of
plaintiff’s failure to give security for costs—Res judicata.
Where the plaintiff brought an – action in the District Court ofColombo against the defendant, who was resident in Kalutara, ona promissory note, and having been ordered to give security forcosts under section 417 of the Code, he failed to do so, and hiaaction was dismissed under section 418 of the Code;and where
the plaintiff brought an action on the same note in the DistrictCourt of Kalutara, and the defendant pleaded the dismissal of theprevious action as res judicata,—
Held, that the dismissal of the first action operated as res judicataand barred the second action.
Hariram Mohanji v. Lalbai1 referred to and distinguished,i (1902) I. L. R. 26 Bom. 637.
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1908. A PPEAL by the firat defendant from a judgment of the DistrictSeptember 14.Judge Of Kalutara (P. E. Pieris, Esqi). The facts are fully
" stated in the judgment.
Bawa, for the first defendant, appellant.
H.. Jayewardene, for the plaintiff, respondent.
Cur. adv. vult.
September 14, 1908. Wendt J.—
The question in this case is whether the dismissal under section 418of the Civil Procedure Code of a former action, on the failure ofplaintiff to find the security ordered under section 417, is a bar to asecond action for the same cause. The learned District Judge hasheld-that it is not. The facts are as follows. Both actions are bythe endorsee against the maker and endorser of the same promissorynote- In the former action, which was brought in the DistrictCourt of Colombo, the first defendant, who was resident in Kalutara,before answering, obtained an order directing the plaintiff tp depositRs. 250 as security for his costs on or before June 26, 1907. Thisperiod was subsequently extended to July 10, but the deposit nothaving been made, the action was on that day dismissed with costs.No application was made for leave to withdraw from the action,nor did plaintiff apply for an order to set the dismissal aside. OnJanuary 29, 1908, the present action was commenced. In hisanswer, besides pleas on the merits, the first defendant pleaded thatthe dismissal of the Colombo action was a bar to the present action,and this was tried as a preliminary issue. The District Judge held,following Hariramr Mohanji v. Lalbai,1 .that the dismissal was not abar, and first defendant has appealed.
Our law as to res judicata is to be found in section 207 of the CivilProcedure Code' which enacts that “ all decrees passed by the Courtshall, subject to appeal, when an appeal is allowed, be final betweenthe parties; and no plaintiff shall hereafter be non-suited.” Tothis section is appended the following “explanation”:—“Everyright of property, or to money, or .to damages, or to relief of any kindwhich can be claimed, set up, or put in issue between the parties toan action upon .the cause of action for which the action is brought,whether it be actually so claimed, set up, or put in issue or not inthe action, becomes, on the passing of .the final decree in the action,a res judicata, which cannot afterwards be made the subject of actionfor the same cause between the same parties. ”
“ Decree ” is defined in section 5 as “ the formal expression ofan adjudication upon any right claimed or defence set up in a CivilCourt, when such adjudication, so far as regards the Court expressingit decides the action or appeal. ”
The dismissal of the Colombo case involved the adjudication thatplaintiff could not maintain his action. It was therefore a decree,
1 (1902) I. L. R. 26 Bom. 637.
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and a final decree, because so long as it remained in force nothing 1908.more could be done in the action. When it was passed, .the right to September 14.recover the promissory note debt which plaintiff had set up in that Wendt J.action became a res judicata, and could not be litigated in a newaction between .the same parties.
The law enacted by the Indian Civil Procedure Code is not thesame. It is true that the definition of decree (section 2) and theprocedure in relation to security for costs (sections 380, 381) aresubstantially the same, but the provisions as to res judicata embodiedin section 13 are essentially different from our section 207. Section ■
13 enacts that no Court shall try any suit or issue in which thematter directly and substantially in issue (first) has been directlyand substantially in issue in a former suit, and (secondly) has beenheard and finally decided in that suit. In short, the Court musthave entered into the " merits ” (to use a convenient term) anddetermined the rights of the parties thereupon. Hence the circum-stance that in the Bombay case above cited no question of resjudicata was raised before Starling J.; section 13 was not referredto at all. (To judge from the report, plaintiff's counsel did notcontest the position that if the cause of action and the parties werethe same the dismissal was a bar; he only submitted that theparties were not the same.) There being, then, no res judicata, thelearned Judge had to decide whether there was any prohibition of asecond action, and he held that there was not, and that he was notprepared to introduce one himself. See the older case of BungravRavji v. Sidlii Mohomed.1
It is true that in section 403, which allows a plaintiff, whose actionhas abated or been dismissed, to apply for an order setting aside theorder of abatement or dismissal, an express prohibition is insertedagainst bringing a fresh action. But that is not on all fours withsection 418, where plaintiff has the additional privilege of movingto withdraw from the action. It may well be that the Legislatureconsidered the plaintiff s interests sufficiently protected when hehad been given that privilege, and' also the right, on sufficient causeshown, to have the decree of dismissal set aside. (Compare alsosection 84 of our Code, where our Legislature has omitted theprohibition of section 103 of the Indian Code against the bringingof a second action.)
I would set aside the order appealed against, and, deciding thepreliminary issue against the plaintiff, dismiss his action with costsin both Courts.
Wood Benton J.—
The question in this case is whether the plaintiff, whose actionhas been dismissed under section 418 of the Civil Procedure Codefor failure to give security for costs, can bring a fresh suit against
11. L. B. 6 Bom. 482.
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the same defendant on the same cause of action. The learnedDistrict Judge has answered this question in the affirmative, on theauthority of the decision of Starling J. in Hariram Mohanji v.Lalbai,1 in which it was held that the dismissal of a suit undersection 881 of the Indian Code of Civil Procedure, which correspondsto our section 418, does not bar a fresh suit for the same cause ofaction. I venture to think that this decision is not applicable tothe present case. Starling J, says in effect: “ Section 381 of theIndian Code does not, like section 103 (dismissal for want of appear-ance of plaintiff), create a statutory bar to the institution of a freshaction, and it would be wrong for me to introduce such a prohibition.”But he does not say that the dismissal of a suit under section 381would not have precluded fresh proceedings if the case had comeunder section 13 of the Indian Code of Civil Procedure, whichcontains the Indian statutory law of res judicata (c■/•, on this point,the decision of the Judicial Committee delivered by Lord Watsonin Chand Hour v- Pariah Singh 1 2). The question, therefore, that wehave to decide is whether the dismissal of an action under section 418of our Code comes within the range of the law of res judicata as itexists in Ceylon. I think that it does. The judgment of dismissalis a “ decree, ” inasmuch as it finally disposes of the suit (i.e., of theplaintiff's right to maintain the action) so long as it remains on therecord (Williams v. Brown ,1). Being a decree. “ it operates as resjudicata in regard to that right under section 207, irrespective ofthe question, which arises under the corresponding Indian section(section 13), whether the matter in issue between the parties in thesecond suit has been heard and finally decided in the first. ” I donot think that in the case of 111, C. R-, Galle, 4,564,4 to which Mr.Jayewardene referred us, Sir Joseph Hutchinson C.J. could havemeant to hold that, for no purpose is .there any substantial differencebetween section 13 of the Indian and section 207 of the CeylonCode of Civil Procedure.
I would allow the appeal, and dismiss the respondent’s action,with all costs here and below.
1 (1902) I. L: R. 26 Bom. 637.* (1886) I. L. R. 8 All. 109 (Full Court).
2 (1888) I. L. R. 16 Cal. 101.4 S. C. Min., July 14, 1908.
PALANIAPPA v. GOMES et al