037-NLR-NLR-V-72-TOWN-COUNCIL-OF-MADAMPE-Appellant-and-J.-C.-W.-MUNASINGHE-Respondent.pdf
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Town Council of Madampe v. Munasinghc
1968Present: T. S. Fernando, J., and Alles, J.TOWN COUNCIL OF MADAMPE, Appellant, and
J.C. W. MUNASINGHE, Respondent
S. C. 462(66 (F)—D. G. Chilaw, 17092/M
Town Council—Appointment of Special Commissioner after dissolution—Actioninstituted by him—Effect thereon when new Town Council is constituted—Suit against the same defendant by the new Council on the same claim—Plea ofros judicata raised by the defendant—Invalidity—“ Privy in estate ”—Effecton an action when a party dies or ceases to-exist in law—Civil Procedure Code,s. d04—Town Councils Ordinance (Cap. 256), s. 1S3 (<5) (6).
Wliero, after the dissolution of a Town Council, a Special Commissioner isappointed in terms of section 1S3 (5) of.the Town Councils Ordinance, an actioninstituted by him lapses automatically as soon as a new Town Council isconstituted lator and its Chairman is elected. Accordingly, tho subsequentdismissal of that action after the Special Commissioner has lost his capacity tocontinuo tho proceedings and censed to hnvo any existence in law is a nullityand is not cupablc of founding tho pica of res judicata in a fresh action broughtby tho now Town Council against tho sumo defendant in respect of the snmoclaim for recovery of a sum of money duo to tho Council from the defendant.Moreover, in such a case, tho new Council, whoso interests accrued prior to thodismissal of the earlier action cannot bo regarded as a privy in estnto of thoSpociol Commissioner.
.Appeal from a judgment of tho District Court, Chilaw.
S. Skarvananda, for the jdaintiff-appcllant.yl. G. Nadarajah, for the defendant-respondent.
Cur. adv. vult.
T. S. FERN'AXDO, J.—Town Council of Madampe v. M unaainghe
157
'..March 30, 196S. T. S. Fernando, J.—
The Town Council of Madampc constituted b}' Order (P2) made by theMinister of Local Government and the term of office of which commenced■on July 1, 1962, instituted this action on August 13, 1963, against tho- defendant for the recovery of a sum of Rs. 9.0S203 alleged to be due fromhim on account of electric current supplied to a theatre of which he was•the owner and proprietor. On the date of trial, after issues had beenframed, counsel for both parties agreed that one of the issues (issue 5)bo decided as a preliminar3r issue. As framed and accepted by the court,•it read as follows :—“ Does the decree in case No. 16699 operate as resjudicata against the plaintiff in this ease ? ”. After argument by Counsel,the learned District Judge reserved his order for September 11, 1966,
on which day he held against the plaintiff and entered judgment
dismissing the plaintiff’s action with costs. The appeal before us•canvasses the correctness of this judgment.
In view of the nature of the plea, it-becomes necessary- to examine -the decree in the said case No. 16699 and the circumstances in which itcame to be entered. Document Dl, the plaint in that case, shows thatthe action was filed by one E. V. S. de Alwis, the Special Commissioner,~to administer the affairs of the town of Madampe appointed by Order•{PI) of the Minister in terms of section 183 (5) of the Town Councils•Ordinance (Cap. 256) against the present defendant-respondent for theTeoovery of a sum of Rs. 9,082 03. There is no dispute between theparties that it is the very same sum of money that the plaintiff-appellant: seeks to recover in the action from which the present appeal has resulted.As the Order (PI) by which Mr. de AJwis was appointed with effect fromMay 4, 1959 also dissolved, as from the said date, the then existing Town-Council of Madampe, it is clear that by section 183 (6) of the Ordinance all•the property and the rights under contracts and all the powers vested in:the Town Council were deemed vested in Sir. de AJwis. He therefore,undoubtedly, had the right to institute action No. 16699. In terms
of PI the Special Commissioner was “ to administer the affairs of thetown until a new Town Council is constituted for that town under the
■Ordinance and (until) that Council elects its Chairman. ” Althoughthe term of office of the new Town Council commenced on July 1, 1962, a
Chairman was elected only on July 23, 1962, so that on this latter day the•office of Special Commissioner ceased to exist.
To return to case No. 16699. In D2, which is the answer filed by the•defendant therein on November 7, 1962, at a time when the office of-Special Commissioner had ceased to exist, the defendant pleaded, interalia, that “ the plaintiff is not tho Special Commissioner now and is not■entitled in law to maintain the action On the day fixed for trial,i.e. on March 4, 1963, the record reads as follows :—** Counsel for plain-tiff states he is unable to proceed with this case as the plaintiff is absent **."Thereupon the learned trial judge made order that the plaintiff’s action."be dismissed. Had the judge examined the pleadings he would have.become aware that the defendant’s own position was that the plaintiff
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T. S. FER^AXDO, J.—Town Council of Madampe v. Munasinghc
was not the Special Commissioner any longer. There was no person-called the Special Commissioner on the date of trial. In view of that-circumstance the proctor (and therefore counsel also) for the plaintiff onthe record had no authority to act for the latter in the same way that aproctor ceases to have authority to act for a party who has died. In. Sabapathypillai v. Vaithialingam where the question was whether atrustee whose term of office has expired during the pendency of an actionbrought b}‘ him is entitled to continue the action, this Court held thatho was not so entitled. In doing so, it followed an earlier decision of theCourt in Appusingho v. Balasuriya A similar view was taken in thecase of Thangavadivd v. Inthiravathy3 which was one instituted undersection 10 of the Jaffna Matrimonial Rights and Inheritance Ordinanceby a wife against her husband for the return of certain jewellery. Adecree absolute dissolving the marriage between the husband and wifehaving been entered during the pendency of the ease, this Court held-:-that the wife by reason of the divorce lost her status to continue theproceedings. The true position being that the Special Commissionerslost his capacity to continue the proceedings he initiated in case No. 1GGG9,it does not seem to be possible to maintain that the Court had any juris- 'diction to dismiss that action on any date alter he had lost that capacityany more than it would have had jurisdiction to dismiss after the deathof a person a. case brought by that person. I would hero refer to theobservations of the Priv3’ Council in the Indian case of Debi Bal’hshSingh v. Habib Shah*, a case of a dismissal of a suit on the occasion of thenon-appearance of a plaintiff who, unknown to the court, was dead atthe time of such dismissal. Said Lord Shaw : “ It requires no words oftheir Lordships to show the inapplicability of rules or orders dealingwith the case of the non-appearance of a suitor to the situation whicharises when the suitor is dead. The principle of forfeiture of rights in-"* .consequence of a default in procedure by a party to a cause is a principle’-’of punishment in respect of such default, but the punishment of the.dead or the ranking of death under the category of default, docs not seemvery reasonable The office of Special Commissioner having ceased toexist as from July 23, 1962, even before the defendant’s answer was filed,it was not competent to the person who held that office prior to theaforesaid state to have entered an appearance on the date of trial. Thedismissal of the action in. case No. 1G609 was, in my opinion, a nullifyand, therefore, was not capable of founding the plea of res judicata that'has been upheld in the order appealed against.
An alternative argument relied on by counsel for the plaintiff was thatthe plea of res judicata being one available against the same party, hisheirs, privies or successors, the decree before it can be pleaded as resjudicata against him should be one entered before lie became such heir,privy or successor. He relied on certain eases decided by this Court, 1
1 (193S) JO X. Is. R. 107.3 (1950) 53 K. L. R. 369.
'• (1913) 16 X. L. R. 3S-5.*(1913) I. L. R. 3-5 AU. at 33C-
T. S. FERXAXDO, J.—Town Council oj Mad am pc v. JMunasinghe
159
notably Molagoda Kvmarihamy v. Kempitiya 1 and William Singho v.•Silva In the last mentioned ease, it was held that a person whoseinterests accrued to him prior to an order of court is not a priv}' in estateof his predecessor for the purposes of res judicata. Nagalingam J.(at p. 512) observed :—** This contention brings one to a considerationof the question, who is a privy in estate ? Had the 2nd defendantacquired his interest subsequent to the order of amendment-, then clearlythe 2nd defendant would have been a privy in estate to the 1st defendantand would be bound by the decree. But in this case the 2nd defendanthad acquired his interest anterior to even the applica-
tion made by the plaintiff to have the decree amended. His rightstherefore accrued'to him not subsequent to the order of amendment butprior to it and he cannot therefore be deemed to be privy in estate to the1st defendant, and no judgment or order made against the 1st defendant-in respect of the interests lie had parted with can affect the rights of thetransferee of those interests, namely the 2nd defendant. Hukm Chand,in his treatise on the Law of Res Judicata,-quotes acitation_which is, worthreproducing :
“It is well understood though not usually stated in express terms inworks upon the subject that no one is privy to a judgment whosesuccession to the rights of propert}' thcrebjr affected occurredpreviously to the institution of the suit. ”
Learned counsel for the defendant sought to counter the alternativeargument put forward as above indicated b}* tr3Ting to show that thiscase falls within Chapter XXV of the Civil Procedure Code which dealswith the continuation of actions after alteration of a party’s status.Arguing that section 404 of the Code applies, he relied on the decision ofthis Court in Chidambaram Chettiar v. Fernando3, where Jayetileke J.interpreting that section, after stating—at page 51-—that “ section 404provides that the person acquiring the interest ma}' continue the actionwith the leave of the court. It docs not provide that, if he docs notobtain the leave of Court to continue action, the action should standdismissed”, cited the following passage from a judgment of the HighCourt of Calcutta relating to an interpretation of rule 10, Order 22 of theIndian Civil Procedure Code, which is the corresponding provision to oursection 404 :—
“ This entitled the person who has acquired an interest in thesubject-matter of the litigation by an assignment or creation ordevolution of interest pendente life to apply to the Court for leave tocontinue the suit. But it does not follow that it is obligatory upon himto do so. If he does not ask for leave, he takes the obvious risk thatthe suit may not be properly conducted by the plaintiff on record,andj-et-, as pointed out by their Lordships of the Judicial Committee
inlie will be bound by the result of the litigation, even
though he is not represented at the hearing. ”
1 (1943) 45 N. L. R. 34.*(1949) SO N. L,. R. 510.
* (1947) 49 N. L. R. 49.
■1G0
Chandradasa v. The Queen
I think it is sufficient to say that these decisions have no application in arsituation -where the party on the record has become incapable of•continuing the section because he has ceased to have any existence inlaw, Rai Charan v. Bisivanalh1, the Calcutta case from which the above•citation has been taken, was a case where there was a party competent onthe record to take action and not a party who was dead or had ceased toexist in law. Another case brought to our attention, ViswanathaswamiDevasthanam v. Koodalinga Nadar"1, is of no assistance as it has notpurported to decide a point similar to that with which we are here•concerned. I am of opinion that the alternative argument of counsel forthe plaintiff is also entitled to prevail.
For the reasons set out above, the judgment of September 11, 1966■dismissing the plaintiff’s action with costs has to be set aside. I-accordingly do so, and the case will now be remitted to the DistrictCourt for the trial to be continued on the remaining issues one of whichhas raised the question whether the action filed by the plaintiff isprescribed. The plaintiff is entitled to the costs of August 21, 1966,•and of this appeal.
Alles, J.—I agree.
Judgment set aside.