SAMICHI v. PIERIS

071-NLR-NLR-V-16-SAMICHI-v.-PIERIS.pdf


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Present: Lascelles C.J., Wood Benton and Pereira JJ.BAMICHI t>. PIEBIS.195—D. C. Kandy, 21,328.Bes judicata—Seizure of money doe to debtor under a contract—Claim byassignee of contract upheld—Subsequent seizure by same creditor ofanother- sum of money due under same contract—Claim by the sameclaimant—Civil Procedure Code, ss. 2071 406—Appeal—Seizureof money under s. 232, Civil Procedure Code—Inquiry into claimpreferred—No appeal lies against an order in the claim inquiry.
A creditor seized a sum of money whioh had accrued due to hisdebtor under a contract. A third party claimed the money as theassignee of all the debtor’s rights under that oontract, and thecreditor consented to the claim being upheld. Thereafter the sameoreditor seized a further sum of money which had accrued to thesame debtor under the contract; the same claimant claimed themoney under the same assignment.
Held (per Lascelles C.J. and Wood Renton J.), that the rightof the claimant to the money was res adjudjcata between theparties, and that it was not open to the creditor to challenge in thesubsequent proceedings the claimant's title.
Section 207 and similar sections of the Civil Procedure Codedo not embody the whole law as to res judicata in Ceylon.
Even if we are restricted to section 207 of the Code, the expres-sion “ cause of action ” contained in the explanation to thatsection cannot be restricted to the particular subject-matterclaimed. The cause of action must be held to include the denial ofthe right to the relief which a litigant claims, and, inferentially,a denial of the title by whioh he claims it.
Per Pkbeira J., following the decision in Palaniappa v. Qomis,1that our law as to res judicata is to be found in section 207 of theCivil Procedure Code, and that although the provisions of thatsection may be supplemented by the English law, that law cannotbe brought in to qualify those provisions, or to supersede anyportion of the section, or to restrict or expand its scope or meaning.Therefore, whatever is laid down, as held or ordered, within thefour comers of the decree in a case, cannot be debated again in asubsequent action between the same parties, but (according to the“explanation ” attached to the section) any incidental or collateralmatters that were actually put in issue, or might have been put inissue, in a case would be res judicata only where another action isattempted oh the same cause of action. ^
An inquiry into a claim to money seized in the hands of apublic officer under section 232 of the Civil Procedure Code is aninquiry under sections 242 to 245 of the Code, and the order onsuch inquiry is therefore not appealable; the remedy of the partyagainst whom it is made being an action under section 247.
i 4 Bah 21.
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i 22-[-J. H. 86177 (1/U)
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Samteki
Pieris
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T
TTR facts are set out as follows in the judgment of WoodBenton J.:—
The facts material to this appeal are these. Thomas de Silva, theappellant, Arbaham Pieris, the defendant, and Adrian Fonsekaentered into a contract with the Principal Civil Medical Officer onJune 27, 1911, to supply to the Government hospital at Dambullacertain articles of food from July 1, 1911, to June 30, 1912. Bydeed No. 1,424 of September 12, 1911, Pieris and Fonseka assignedto the appellant their rights under the contract. This assignmentwas effected in breach of a condition of the contract that it shouldnot be assigned without the previous written consent of the PrincipalCivil Medical Officer. The plaintiff-respondent, Samitchi Appu,obtained judgment against Pieris in this case, and—I am taking thefacts as they are now placed before us in the learned District Judge’sreply, dated February 27, to a letter sent to him by direction of mybrother Pereira and myself at the close of the first argument—seized, under section 232 of the Civil Procedure Code, what was thenthe unascertained sum due to Pieris under the contract abovereferred to in the hands of the Principal Civil Medical Officer. ThePrincipal Civil Medical Officer paid the money into the Court ofRequests, Colombo. The appellant claimed it by virtue of hisassignment. The matter came on for investigation in the DistrictCourt of Colombo, and the respondent there formally consentedto the appellant's claim being upheld. Subsequently a further sumof Rs. 553.38 accrued due to Pieris under the contract with thePrincipal Civil Medical Officer, and the latter paid it into the DistrictCourt of Kandy. The appellant claimed it once more under hisassignment, fortified as the assignment had been by the respondent’sconsent to the claim being upheld in the previous proceedings in theDistrict Court of Colombo. The respondent alleged, however, thathe had consented to the claim being upheld in ignorance of the factthat the assignment by Pieris and Adrian Fonseka of their rights infavour of the appellant had been made in breach of an expressprohibition contained in the contract itself. The appellant con-tended, on the other hand, that the matter was res judicata, andcould not be re-opened so long as the consent order upholding theclaim was enforced. The District Judge declined to accept thiscontention, and allowed the motion by the respondent that the sumin question should be paid over to him. The present appeal isbrought from that order.
This case was referred to a Full Bench by Wood Renton J. andPereira J.
A. Jayewardene, for the appellant.—The respondent cannotnow contend that the appellant is not entitled to moneys accruingto the debtor under the contract. The same matter was in disputein the previous claim inquiry between the same parties in the
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Colombo District Court. The matter in dispute in both inquirieswas whether the appellant had acquired any right to the moneysaccruing under the contract. The fact that the sum of moneyclaimed in the Colombo Court is not identical1 with the sum claimedin the present case does not affect the question. [Pereira J.—Thelaw of res judicata in Ceylon and in India is part of the law ofprocedure and not of the law of evidence as in England. We haveto interpret the sections of the Civil Procedure Code.] Section 207 ofthe Civil Procedure Code is not exhaustive. It only meets the case ofa person having several titles and not putting forward all the titlesin issue. Even in India it was held that the identity of subject-matter is noFnecessary (Hulun Ckand 42, 46). [Pereira J.—In Indiathe sections of the Procedure Code provide that the matter is resjudicata under the present circumstances.] The general principlesof the law of res judicata are relied on, and not the Indian section, byHuhm Chand. See also 11 Cal. L. J. 461, at page 468. [Pereira J.—General principles cannot over-ride the terms of section 207.]Counsel cited Dingiri Menika v. Punchi Mahatmaya,1 Huhm Chand49, Mohamed Cassim v. Sinrve Lebbe Marikar et al.,2 PabaniappaChetty v. Saminathan Chetty.*
Zoysa, for the respondent.—There is no appeal against the orderof the District Judge. The procedure for claim inquiries applies tothis matter; and there is no appeal against an order in a claiminquiry. See Tikum Singh v. Sheo Bam Singh.4,
The order in the Colombo case cannot be pleaded as res judicata,as the respondent consented to the clainl being upheld in thatcase, as he was ignorant of the fact that the assignment was invalid.
The cause of action in both inquiries is not the same. The Indianlaw is different from ours. Counsel cited 187-8—D. C‘. Kalutara,No. 4,709,5 Palaniappa v. Gomis.6
Jayewardene, in reply.
Cur. adv. vult.
March 19, 1913. Lascelles C. J.—
His Lordship set out the facts, and continued:—
The question is whether by reason of this order the claim nowunder consideration is res adjudicata. During the argument thepoint was raised, which I understand was-taken in the previousargument, that an order under section 232 of the Civil ProcedureCode was not appealable.
On this point we were referred to the Indian case of Tikum Singhv. Sheo Ram Singh.4, This decision is not binding on us, but itcontains an exposition of the scope of the Indian section correspond- -ing to our section 282, whichI think should be accepted as correct.
i (1910) 13 N. L. R. 59.4 (1891) I. L. R. 19 Cal. 286.
a (1909) 12 N. L. R. 184, at page 1865 8. C. Mm., Oct. 25,1912.
« (1912) 15 N. L. R. 161.6 4 Bal. 21.
1913.
SanUchiv* Pieris
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XiABOKT.LRB
C.J.
Samichi«. Pieris
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Section 282 is one of a group of sections which, under the heading“ Mode of Seizure,” provides for the seizure of property of differentcategories. The first part of section 282 describes the mode ofseizing property deposited in Court. Then the proviso goes on toprovide that ” any question of title or priority arising between thejudgment-creditor and any other person not being the judgment-debtor, claiming to be interested in> such property by virtue of anyassignment, attachment, or otherwise, shall be determined by suchCourt.”
This, I think, merely indicates the jorum in which the inquiry isto be made; and does not mean that the procedure for the investigationof claims for this particular description of property is different fromthat which is prescribed for the investigation of claims in the case ofall other descriptions of property when seized in question. .
The sections headed “ Claims to Property Seized ” (sections241-262) relate to all descriptions of property, and orders made onthe investigation of claims are final, subject to the result of an action,if any, instituted under section 247. I am therefore of opinion thatthe appeal fails on thiB ground, and must be dismissed with costs.
The question, however, with regard to res adjudicate is important,and, after the very full argument which we have heard, 1 amreluctant to leave it without recording the conclusion at which Ihave arrived.
The point may be stated thus. A claim for a certain sum, undera deed of assignment, had been allowed by consent; a claim for afurther sum is now made under the same deed. The question iswhether the latter claim is barred by the order in the former claim,the parties being the same in both proceedings. It was concededthat an order made by consent of parties is, for purposes of estoppelby res judicata, not less conclusive than an order made after acontest. Gt was further conceded that by the law of England andby the law of India it is not essential that the subject-matter of thelitigation should be identical with the subject-matter of the previousproceedings, and that the true test is the identity of the matter incontroversy. But it is contended that under section 207 of the CivilProcedure Code, or rather under the explanation to that section, theapplication of the operation of the rule in Ceylon is more restricted.-!
The current of judicial decision in Ceylon strongly supports theview”that on this point there is no distinction between the law ofCeylon and that of England. (Endris v. Adrian Appu,* Kantaiyer v.~Ramu,2 Dingiri Menika v. Punchi Mahatmaya.3)
see no reason for accepting the contention that the whole of ourlaw of res judicata is to be found in Sections 34, 207, and 406 of theCivil Procedure Code. The law of res judicata has its foundationin the civil law, and was part of the common law of Ceylon long
i (1905) 11 N. L. R. 69.2 (1909) 18 N. L. R. 161
(1910) 18 N. L. R. 69.
before Civil Procedure Codes were dreamt of. But even if thesesections contain an exhaustive statement of the law on this point,I cannot see that there is anything in them which is inconsistentwith the principles which have been followed in the English, Indian,affj^merioan Courts.It is said, in relation to the facts of thepreS'efiff case, that the ^ cause of action " in the former proceedingswas the* judgment-creditor's denial of the claimant's right to acertain number of rupees, and that the “ cause of action M in. thepresent case is his denial of the claimant's right to a different sum ofrupees, and that the causes of action in the two proceedings aretherefore different.
The expression “ cause of action " has different meanings, as isshown by the not very helpful definitions in the Code. But I donot think that, when a question of res judicata arises, the termmeans merely the denial of a claim. The “ action " was theclaimant's claim to the money. It is surely no answer to thequestion “ What Was the * cause ’ of the action?" to say " Thejudgment-creditor's denial of this claim." This carries the matterno further. It merely .amounts to a statement that the claim v^as, disputed. The true " cause of action," it seems to me, is the rightin virtue of which this claim is made; the foundation of the claimwhich, in this case, is the right claimed under the assignment. Thiswas the true cause on which the action was founded.. On this"construction no difficulty arises under the explanation to section 207.Lord Watson in Chand Kaur v. Parbap Singh 1 stated with regardto this expression: " The cause of action has no relation what-ever to the defence which may be set up, nor does it dependupon the character of the relief prayed for by the plaintiff. Itrefers entirely to the grounds set forth in the plaint as the causeof action, or, in other words, to the media upon which the plaintiffasks the Court to arrive at a conclusion in his favour."
If the term " cause of action " be understood in this sense,section 207 presents no difficulty, and does not prevent the law of resadjudicata being applied in Ceylon in the same manner as in Englandand India. ■ The cause of action, in my opinion, was the right whichthe claimant asserted in virtue of the assignment in his favour, andwas one and the same in both proceedings. If the order had beenappealable, I should have decided in favour of the appellant. As it *is, I would dismiss the appeal with costs, on the ground that theorder is not appealable.
Wood Renton J.—
His Lordship, after stating the facts, continued:—
The argument of the case has pursued a somewhat curious course.When it was first heard before my brother Pereira and myself,although Mr. St. Valentine Jayewardene informs us, I have no1 (Huktn Chand on" Res judicata " p. 11.
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WoodRenton J.
Somichi0. Pieris
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doubt correctly, that the point that the order was not appealablewas taken by him, the main question pressed upon (us was whetheror not the District Judge was right in holding that the respondentwas not estopped from disputing the appellants title by the consentorder in the claim proceedings. It was with a view to clearing theground for a determination of that issue that we sent the case backfor a statement by the District Judge as to the exact relationbetween the two sums of money that were in issue respectively inthe proceedings in the District Court of Colombo and in the presentproceedings.
At the re-argument, however, before three Judges, Mr. Zoysabrought up again the question whether or not the case is one inwhich an appeal would lie. He put his argument in this way.Section 232 of the Civil Procedure Code merely prescribes the modeof seizure in such a case as this, and although the proviso to the. section says that questions of title or priority arising between thejudgment-creditor and any other person in ■‘regard to propertydeposited in Court or seized in the hands of a public officer shall bedetermined by the Court from which execution issued, suchquestions must be brought before that Court for determination inthe manner indicated in sections 241 et seq. This construction ofsection 232 is supported by the decision of the High Court of Cal-cutta in Tikum Singh v. Sheo Ram Singh 1 under the correspondingsection (272) of the old Indian Code of Civil Procedure, and onfull consideration I think that it is sound.
This finding is in itself sufficient to dispose of the present appeal,but as the case was sent back to the District Court of Kandy for thepurpose of enabling the question of res judicata to be argued, and asthat question has now been elaborately argued before us, I thinkthat we ought to express an opinion upon it. The facts may behypothetically put as follows. The judgment-creditor seized a sumthat has accrued due to his debtor under a contract. A third partyclaims it as the assignee of all the. debtor’s rights under thatcontract. The fact in the present case that the assignment had beenexecuted in contravention of a provision of the contract is immate-rial, since the party for whose benefit that prohibition' existed hadnot sought to take advantage of it, and it cotdd not have the effect ofavoiding the assignment in favour of third parties. The judgment-creditor consents to the claim being upheld, and the money is releasedfrom seizure. A further sum of money accrues due to the samedebtor under the same contract later on. It is seized by the samejudgment-creditor. The same claimant sets up title under the sameassignment. Can the execution-creditor challenge in the subsequentproceedings the claimant’s title? To this question there can be,in my opinion, only one answer: he cannot. It is clear law that ajudgment by consent has the full effect of a res judicata between thei (1891) I. L. R, 19 Cal 986.
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parties (In re South American & Mexican Co.1). Its effect for thispurpose is not weakened by any allegation that it has been enteredinto under a mistake of fact. If mistake is alleged, proceedings maybe taken to set the judgment aside. In the absence of such pro-ceedings it stands. All that the law of England or of India (HukmChand, “ Bee judicata,” pp. 43 et eeq.; and see Lemm v. Mitchell *)or of Ceylon requires for the purpose of constituting ret judicata orestoppel by judgment is that the issue in question should have beendistinctly raised between the same parties appearing respectively .in the same capacity, and should have been directly and necessarilydetermined by the former proceedings. It is of no consequencethat the matter is dealt with in the decree itself, or that the form ofthe subject-matter of the later proceedings is different from theform or the subject-matter of the earlier. In my judgment in D. C.(Int.) Kalutara, No. 4,836,1 I have dealt fully with the English andthe local authorities on this question, and have endeavoured to showthat the case of Barrs v. Jackson* as decided by Lord LyndhuretL.C. in appeal, supports the view of the law which I have just stated.The case of Regina v. Hutchings 5 is no authority to the contrary.That decision is explained by the House of Lords in WhitfieldCorporation v. Cooke,* and offers an admirable illustration of whatis meant in the law of res judicata by an incidental issue to thedetermination of which the effect of res judicata will not attach.The only question that the Magistrates had to determine was whetheror not certain expenses, amounting to £400, had in fact been incurredin the repair of a road and were due by an individual to the Corpora-tion. The Magistrates went out of their way to inquire into, and toexpress an opinion upon, a question which they had no jurisdictionto entertain, namely, whether the road in question was a publicstreet or not. Their views on this point were properly held on appealto relate to an incidental issue alone, .and not to have the effect ofres judicata in subsequent proceedings in which the same questionwas raised. It is obvious, however, that totally different considera-tions arise where, as in Barrs v. Jackson * or in the present case, weare dealing with issues which, although they may not be directlytouched upon by the decree, constitute the very ground on which alitigant claims, and on which alone he can obtain judgment.fit is suggested that the principles of English and Indian law as tores judicata are excluded by section 207 of the Civil Procedure Code.
I see" no reason to'alter the opinion which I have already expressedin various other cases that section 207 and similar sections of theCivil Procedure Code do not embody the whole law as to res judicatain Ceylon. But even if we are restricted to section 207 of the Code, i
i (1896) 1 Ch. 87.* (1842 and 1845) 1 Y. <t C.
* (1915) A. C. 400.C. C. 586 and 1 Ph. 682.
» (1913) S. C. Min., February 17,1913.* (1881) 6 Q. B. D. 300.
* (1904) A. C. 81.
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WoodBenton J.
Samichi«. Pierit
I am quite unable to interpret the expression “ cause of action,”contained in the explanation to that section, as being restricted tothe particular subject-matter claimed. The cause of action must beheld to include the denial of the right to the relief which a litigantclaims and, inferentially, a denial of the title by which he claims it.To permit in a country like this such issues as legitimacy, descent,and title under identical deeds of transfer or rights arising underidentical written contracts, to be re-agitated between the sameparties appearing in the same capacity in any number of independentactions, so long as the form or the subject-matter of each of theseactions was different, would be to involve the work of the Courts offirst instance and of the Supreme Court in almost inextricableconfusion, and to create most undesirable facilities for convertingthe administration of the law into an engine of oppression^}
1 would dismiss the appeal with costs.
Pereira J.—
I regret that I am obliged to write this judgment while on circuit,with only a few of my notebooks to refer to. The appeal is froman order of the District Judge disallowing a claim to a sum ofBs. 553.88 seized in execution of a writ. This sum was seized, atthe instance of the plaintiff, in the hands of the Principal CivilMedical Officer, as money due by him to the defendant (execution-debtor) on a contract for the supply of provisions to the Dambullahospital. The claimant (appellant) claimed this sum under and byvirtue of an assignment (Cl), whereby the defendant had assignedto him all moneys then due and thereafter to become-due to himfrom the Principal Civil Medical Officer on the contract referred toabove. The District Judge disallowed the claim on the; groundthat the assignment was invalid, inasmuch as it contravened acertain provision of the original contract. It appears from a letterwritten to us by the District Judge in reply to a question put to himthat on a writ issued at the instance of the plaintiff by the DistrictCourt of Colombo a totally different sum of money, but a sum thathad also become due on the same contract, had been seized, and thatthe same had been claimed by the claimant on the same assignment(Cl), and that at the inquiry before the District Court of Colombo theplaintiff in the present case had consented to the claimant’s claimbeing upheld, and that it had accordingly been upheld.
In the present.appeal it was argued, on the one side, that the orderof the District Court of Colombo was a res judicata, which did notpermit of the question of the validity of the assignment C 1 beingdebated in the present case, and, on the other side, that the claimanthad no right of appeal from the order in this case. On both thesecontentions I agree with the counsel for the plaintiff (respondent) inthe views pressed by him. The order of the District Judge must,in my opinion, be regarded as an order under section 245 of the
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Civil Procedure Code, and it is well established that no appeal liesfrom such an order, the remedy of the party aggrieved being anaction under- section 247 of the Code. There is no doubt anirregularity in the present case, namely, the claim does not appearto hive been made before, and referred to Court by, the Fiscal interms of section 241. If that irregularity is to be taken seriousnotice of, the claimant is bound to fail on that alone in this appeal,but assuming the claim to have been duly made, the inquiry shouldhave proceeded as an inquiry under sections 242 to 245 of the Code.True, the mode of seizure in a case like the present is indicated insection 232, and the Court that has jurisdiction to make the inquiryin certain caseB is also .indicated in that section, but there isnothing in it to show that the inquiry itself is not to be the usualinquiry into a claim to property taken in execution under sections242 to 245. The case cited by the respondent's counsel from theIndian Law Beports (19 Cal. 286) appears to be quite in point.
On the question of res judicata, I may say that, as I have hadoccasion to observe in a case or two before this, omitting, as un-necessary, reference to section 41 of the Evidence Ordinance, whichdeals with judgments of Courts in the exercise of probate andcertain other special jurisdictions, the only reference in that Ordi-nance to the law of estoppel by judgment generally is in section 40.That section enacts that the existence of any judgment, order, ordecree which by law prevents any Court from taking cognizance of asuit or holding a trial is a relevant fact when the question is whethersuch Court ought to take cognizance of such suit or to hold suchtrial. This is identical with the provision of the -Indian EvidenceAct on the subject. The question is where 44 the law 93 referred tohere as preventing 44 any Court from taking cognizance of a suit ”is to be looked for. It is not in the Evidence Ordinance or theIndian Evidence Act. Ameer Ali and Woodroffe, in their work onthe Law of Evidence applicable to British India, says (p, 291,1st ed.)that English text writers deal with the subject of res judicata underthe head of Evidence as it is a branch of the law of Estoppel, but theailthOfr of the Indian CodesTiave regarded it as belonging moreproperly to the head of Procedure; and, in India, the law referredto above as preventing a Court from taking cognizance of a suit is tobe found in sufficient fulness in section 13 of the Indian Code of CivilProcedure. Apparently, the intention of the authors of our Code_was exactly the same. The TaV referred to above is not set forth inthe Evidence^OrcEnance. It is only to be found in section 207 of theCivil Procedure Code, and, in saying so, I concur in the view takenby this Court in the case of Palaniappa v. Gomis.1 There Wendt J.said: 44 Our law as to res judicata is to be found in*section 207 of the
Civil Procedure Code The law enacted by the Indian Civil
Procedure Code is_not. the same TEe provision as to res*
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Pbbbxba J.
8amichi«. Pirns
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T judicata embodied in section 18 are essentially different from our
section 207.” This being so, the Indian authorities cited in thecourse of the argument have no application at all to the questioninvolved in the present appeal. I am prepared to concede thatpossibly our whole law as to res judicata is not to be found in section207 of the1 Civil Procedure Code. It may be that, under the authorityof section 100 of the Evidence Ordinance, this provision may besupplemented by the English law, but there is the authority of thatvery section of the Evidence Ordinance for saying that the Englishlaw cannot be brought in to qualify the provisions of section 207 ofthe Civil Procedure Code, or to supersede any portion of it, or torestrict or expand its scope and operation. What section 207 of theCivil Procedure Code enacts is that, primarily, all decrees shall befinal between the parties. This is the substantive enactment in thesection, meaning that whatever is laid down, as held or ordered,within the four comers of a decree, cannot be debated again in asubsequent action between the same parties. Then comes theexplanation, which says that every right of property or to relief ofany kind which can be claimed or put in issue between the partiesto an action upon the cause of action for which the action is broughtcannot afterwards be made the subject of action between the sameparties for the same cause. These.concludingjyords are important,and they must be given a meaning, and their only meaning appearsto be that, as regards the incidental and collateral matters mentionedin the explanation, the decree would be res judicata only whereanother action is attempted on the same cause of action. This, Itake" It, is in strict accordance with what was laid aown hy KnightBruce V.C. in the case of Barrs v. Jackson,l where it was held that afinding of . fact in a suit in the Ecclesiastical Court for a grant ofletters of administration, necessary to the decision and appearing onthe face of the order, was not conclusive in proceedings between thesame parties in a Court of Equity for distribution. The judgment inthe case was, it may be mentioned, set aside in appeal, but, asobserved by Lord Selborne L.C. in The Queen v. Hutching,2 ” on aground not at all touching the principles contained in it.” It mayhe that these principles were given by later judicial decisions asomewhat wider operation than was originally intended, butapparently the intention in the mind of the framer of our CivilProcedure Code was to adhere to them as far as practicable, and, ifanything, to restrict their application. Such a course may havebeen necessary in view of our rules of procedure and the constitutionand jurisdictions of the different Courts of the Island.
In the present case the cause of action in the proceeding beforethe District Court of Colombo was essentially different from thecause of action in the proceeding before the District Court of Kandy.I may say that I did not understand the appellant's counsel toi % Sm. L. C., 7th ed.t 807.2 (1881) 6 Q. B. D. 3001 804.
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contend thqt that was not so. In the former case what may becalled the cause of action was the seizure by the plaintiff on a writissued at his instance by the District Court of Colombo of a certainsum of money. This gave the right to the claimant to come toCourt and make his claim. In the latter proceeding the cause ofaction was the seizure by the plaintiff on a writ issued at his instanceby the District Court of Kandy of a certain other sum of money.True, both the sums were claimed by the defendant on the footingof one and the same document (assignment C 1), but the causes ofaction being essentially different, while by reason of the substantiveprovision of section 207 of the Civil Procedure Code the order ordecree in. the former case was res judicata with reference to theparticular sum of money dealt with by it, the terms at the “ explana-tion ” appended to section 207 would not permit of its beingpleaded as res judicata in the latter case with reference to the othermatters taken cognizance of by the Court in the former.
For the above reasons I would dismiss the appeal with costs.
Appeal dismissed.
201—D. C. (Inly.) Kalutara, 4,836.
De Sampayo, K.C. (with him Seneviratne), for the added defendants,appellants.
Bawa, K.C., Acting 8.-0. (with him A. St. V. Jayewardene), for plaintiff,respondent. '
Feb. 18,1913. Wood Rekton J.—
This case and cases Nos. 199—D. C. (Interlocutory) Kalutara, No. 4,843, andNo. 200—D. C. (Interlocutory) Kalutara, No. 4,760, are actions substantiallybetween the same parties, which by consent have been tried together, forthe partition of three lands, Demelakaddewatta, Mudaligahawatta, and Kos-gahawatta, respectively. The judgment under appeal was delivered inNo. 201—D. C. (Interlocutory) Kalutara, No. 4,836, and disposes of the subject-matter of the two other actions also. The material facts have been statedby the learned District Judge with clearness and care, and I do not proposeto recapitulate them at length. The pedigree of the plaintiff-respondent isaccepted by the added defendants-appellants so far as it goes, but they allegethat it is incomplete, and that Samiel Fernando, the son of Dinis Fernando,the original owner of the lands in suit, besides the children Iso and Nadorisbom to him by his first wife Maria, had by a second marriage a child Riso,through whom the appellants claim. The respondent says that Riso wasnot Maria’s daughter. It is obvious that the question of the legitimacy ofRiso lies at the root of the whole litigation between the parties to thesecases. The respondent contends that appellants are precluded from assertingRiso’s legitimacy by the decree in D. C. Kalutara, No. 1,603. That was anaction for the partition of the land Kosgahawatta substantially between the -same parties who are litigants here. The legitimacy of Riso was the subjectof the first issue, and there, as here, it lay at the root of the whole dispute.The District Judge held that Riso was not the legitimate child of SamielFernando, and the Supreme Court expressly affirmed his decision on thatpoint in appeal. ' The appellants’ counsel admitted at the trial—and. this
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Pebhba J.
Samiehiv. Pieris
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admission ms repeated before us at the argument in the Supreme Court—that the decree in D. C. Kalutara, No. 1,503, was res judicata as regards theland Kosgahawatta in case No. 200—D. C. (Interlocutory) Kalutara, No. 4,780,and that tile appellants could not succeed in regard to that land unless theywere in a position to establish, as they attempted to do, title by prescription.As regards Kosgahawatta, the burden of proof is (dearly on tile appellants.The Distriot Judge holds that they have failed to discharge it, and I am notprepared to say that his decision on this point is wrong. In my opinion, theappeal in No. 200—D. C. (Interlocutory) Kalutara, No. 4,760, ought to bedismissed with costs.
The present case and case No. 199—D. C. (Interlocutory) Kalutara, No. 4,843,stand in a somewhat different position as regards the evidence of prescriptivetitle, and according to the argument of the appellants, as I understand it,as regards the plea of res judicata also. The lands are different from thesubjeot-matter of case No. 200—D. C. (Interlocutory) Kalutara, No. 4,760, andif for that or for any other reason the plea of res judicata is inapplicable, theburden of establishing title by prescription will be upon the respondent, andnot upon the appellants. The learned District Judge has considered theevidence of prescription from this point of view, and has come to the con-clusion that the respondent has made out his case. Here, again, the DistrictJudge has considered the evidence with great care, and I am not preparedto say that he is wrong. On the grounds that I have stated I would dismissthe appeals in this action and No. 199—D. C. (Interlocutory) Kalutara,No. 4,843, with costs.
If it had been necessary to decide the question, I should have held that thefinding in D. C. Kalutara, No. 1,503, that Riso was not the legitimate daughterof Samiel Fernando, operated as res judicata, or as estoppel by judgment,against the appellants as regards the lands Demelakaddewatta and Mudali-gahawatta as well as Kosgahawatta. The decree of title in each of thesecases turned directly on the question whether Riso was Samiel’s legitimatedaughter or not. The decisions in Dingiri Menika v. Punchi Mahatmayaet al. (1910, 13 N. L. R. 59) and Kantaiyer v. Ramu (1909, 13 N. L. R. 161)are binding upon the Court, as at present constituted, on this question. Theview of the law taken in these two decisions is, I venture to think, consistent,and, indeed, in accordance with English authority. The statement by KnightBruce V.C. in Barrs v. Jackson (1 Y. <fe C. 5S5) of the principles of Englishlaw as to res judicata is unchallenged and unaffected by the reversal of hisdecision in appeal. The question, however, is what the law means when itsays that only matters directly determined by the previous judgment are to' be regarded as res judicata. The judgment of Lord Lyndhurst L.C. reversingthe decision of Knight Bruce V.C. in Barrs v. Jackson (1 Y. <£? C. 585) makesthis clear. The material facts.may be stated in a few sentences. A suit wasinstituted in the Prerogative Court for administration to the estate of aMiss Smith. The defendant, Jackson, claimed a grant of administrationas her next of kin. A rival claim was put forward by Mrs. Bans. TheEcclesiastical Court held that Mr. Jackson was the next of kin, and grantedletters of administration to him on that basis. Mrs. Barrs afterwardsinstituted in the Court of Chancery a suit claiming, as next of kin, theresiduary estate of the intestate. Jackson pleaded that- the sentence of theEcclesiastical Court was res judicata as regards her claim in the Chanceryaction. Vice-Chancellor Knight Bruce held that it was not. But LordLyndhurst on appeal (1845, 1 Ph. 582) held that, it was, on the ground thatthe judgment of the Ecclesiastical Court had turned upon the questionwhich of the parties was next of kin to the intestate, mid that that judgmentwas decisive of the same question in a subsequent suit in the Court of Chancerybetween the same parties for administration. The scope of the case Barrs v.Jackson (1845, 1 Ph. 682) is explained by Lord Penzance in Spencer v.William (1891, L. R. 2 P. <b D. 235-236): “ If two parties have once, beforea Court of competent jurisdiction, litigated any question of fact, and that
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question has been finally decided, it is not reasonable that either of them,1918»
in any other Court, should re-open it.” I venture to think that the decision—
of Barra v. Jackson (1845, 1 Ph. 582) in appeal supports the view of the law
which I have just stated. In D. C. Kahitara, No. 1,603, the ground on which
Riso’s children relied in proof of title was their mother’s legitimacy, just as
Mrs. Barrs claimed administration as Miss Smith’s next of kin. In the three
actions with which we are concerned now, Riso’s children rest their claim of
title on the old basis, just as Mrs. Barrs did in the Chancery action. The
question of Riso’s legitimacy is the foundation of the appellants’ * title in
all these proceedings. That question of fact has been decided against them
in D. C. Kalutara, No. 1,503, and they cannot be allowed to re-open it, as
against the same parties, in any other Court of law.
I agree to the order proposed by my brother Wood Renton, but I shouldlike to add that, had it been necessary to decide the question as to res judicata,I would probably have held in favour of the appellants. I should hesitateto act contrary to a decision of a Bench of two Judges, and I would, as far aspracticable, avoid doing so; but I must confess that the inclination of mymind is in the direction of the notion that a Bench of two Judges is not, bylaw, absolutely bound by the decision of another Bench similarly constituted.Considering our rules of procedure and the constitution of our Courts, I doubtthat it can be said that the decision by a Court in the exercise of its ordinarycivil jurisdiction on a more or less incidental issue in a case operates as resjudicata. If it does, the fate of a most valuable estate, patrimony, or inherit-ance may often hang by the slender thread of a very trivial circumstance,namely, an action for an amount barely above the jurisdiction of our Courts ofRequests. In one view it would appear that the whole of our law of Estoppelby judgment is contained in section 207 of the Civil Procedure Code. Omit-ting for the moment reference to section 41 of the Evidence Ordinance, whichdeals with judgments of Courts in the exercise of probate and certain otherspecial jurisdictions, the only reference in the Ordinance to the law of Estoppelby judgment generally is in section 40. That section enacts that the existenceof any judgment, order, or decree which *by law prevents any Court fromtaking cognizance of a suit or holding a trial is a relevant fact when the questionis whether such Court ought to take cognizance' of such suit or to hold suchtrial. This is identical with the provision of the Indian Evidence Act on thesubject; but “ the law ” referred to, here as preventing “ any Court fromtaking cognizance of a suit,” &c., is to be looked for at some place other thanthe Evidence Ordinance or the Indian Evidence Act. As observed by AmeerAli and Woodroffe in their work on the law of Evidence applicable to BritishIndia (p. 291, 1st ed.), English text writers deal with the subject of res judicataunder the head of Evidence, as it is a branch of the law of Estoppel; butthe authors of the Indian Codes have regarded it as belonging more properlyto the head of Procedure; and, in India, the law referred to above as prevent-ing a Court from taking cognizance of a suit, &c.f is to be found in sufficientfulness in section 13 of the old Indian Code of Civil Procedure. Our CivilProcedure Code, which is more or less a transcript of the Indian Code of CivilProcedure, was passed long anterior to our Evidence Ordinance, that is tosay, at a time when, by virtue of Ordinance No. 3 of 1846, our law of Evidencewas substantially the same as the English law on the subject, and hence,apparently, section 13 of the Indian Code was not copied into ours, nor was.it added to it when the Evidence Ordinance was passed. But curiously, ashort provision as to res judicata has, in fact, been inserted in section 207of the Civil Procedure Code, and I doubt, therefore, that for our law of resjudicata we can now look beyond section 207 of the Civil Procedure Code.There is no casus omissus here, that is to say—to use the words of section 100of the Evidence Ordinance—“ a question of evidence not provided for bythis Ordinance or by any other law in force in the Island.”
1018.
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As regards Barr* v. Jackson (2 Sm. L, C.t 7th ed., 807), the decision in thecase was no doubt reversed in appeal but, as observed by Lord Selbome inThe Queen v. Batching* (0 Q. B. Z). 300, 804), ** on a ground not at alLtouohingthe statement of principles contained in it.” I have cited largely from thejudgment in this case in my judgment in 137, 138—D. C. Kahitara, No. 4,700(S. O. Civil Minute*, circa October 26,1912), and, if words mean anything, it isclear from the judgment in Barrs v. Jackson that the decision on an incidental ■issue, however binding and conclusive it may be as to its immediate anddirect object, namely, the object of aiding in the decision of the direct issuein the case, is not conclusive on questions arising on other causes of action.What Knight Bruce V.C. himself meant by an “ incidental issue *' is clearfrom the fact that what he held in the case was that the finding of fact in asuit in Ecclesiastical Court for a grant of letters of administration, necessaryto the decision and appearing on the face of the order, was not conclusive inproceedings between the same parties in a Court of Equity for distribution.The reversal of the decision by Lord Lyndhurst L.C. proceeded largely on theground of the Ecclesiastical Court being a Court of distribution, and on theinconvenience attending the existence of two different findings by two Courtsof co-ordinate jurisdiction. As observed already, there is high authority forsaying that the principles laid down by the Vice-Chancellor are “ untouchedby the reversal.” Moreover, in view of the reversal, it has to be borne inmind that the order of the Ecclesiastical Court was a judgment in ram confer*ring on a person a legal character. Special considerations apply to such judg-ments and even in our Evidence Ordinance they are specially provided forby section 41. The same observations as above may be made with referenceto the decision in Prieatman v. Thomas (1884, 9 P. D. 210), referred to in myjudgment in D. C. Kahitara, No. 4,709, mentioned above. In the present casewe have to deal with the decision on an incidental issue by a Court in theexercise of its ordinary civil jurisdiction.
I am aware that there are cases in which Courts have shown a tendencyto enlarge the sphere of direct issues, but the question arises how far thosecases are applicable to us, in view of our procedure and rules as to stampingpleadings and documents.
I may add that under our procedure as to the framing of issues, the directissue in a case is not necessarily an issue that might be actually framed. Forinstance, when a specific parcel of land is in dispute, the question is whetherit belongs to the plaintiff or the defendant. That is the direct issue, but anissue will hardly ever be framed in such general terms. Incidental andcollateral issues with reference to particular facts are framed, and the decisionon these issues helps in the decision of the direct (though unframed) issue inthe case. •