002-NLR-NLR-V-39-VANDERPOORTEN-v.-PEIRIS.pdf
Vanderpoorten v. Peiris.
5
1937
Present: Poyser and Soertsz JJ.
VANDERPOORTEN v. PEIRIS.
310—D. C. Kandy, 46,190.
Res ad judicata—Action for recovery of arrears of rent and cancellation of lease—Subsequent action to recover damages caused to the leased premises—Civil Procedure Code, s. 34.
The plaintiff sued the defendant in case No. 43,515 of the same Court torecover arrears of rent due on an indenture of lease and for a cancellationof the lease on the ground that the defendant had sublet the premisescontrary to the terms of the lease.
POYSER J.—Vanderpoorten v. Peiris.
The defendant agreed to the cancellation of the lease and the actionproceeded on- the question of the arrears of rent due and judgmententered in favour of the plaintiff.
, The plaintiff thereupon instituted the present action to recoverdamages for failure to keep the premises leased in proper order andcondition and for alleged negligence.
Held, that the action was barred by the decree in the previous action.
A
PPEAL from a judgment of the District Judge of Kandy. The.factsare given in the head note.
H. V. Pe’rera (with him G. E. Chitty), for defendant, appellant,—This actionis clearly barred by the judgment in the earlier case (D. C. Kandy, 43,515)which was brought upon the-same cause of action. Section 34 of theCivil Procedure Code, read together with section 207, makes the subject-matter res adjudicata between these parties who are identical in bothactions. When the plaintiff asked in the earlier case for cancellation ofthe lease she should have prayed for all the relief to which she would havebeen entitled under the contract and in respect of its breach. The failureto repair cannot be regarded as a fresh cause of action entitling the plaintiffto relief, for if that were-so we would be reduced to the position that alessee would be exposed to as many actions as there are covenants in hisbond. The plaintiff should have claimed in the first case every item ofdamages to which she was entitled'. She cannot sue the defendantpiecemeal. She always had a right of inspection in terms of the lease andcould with reasonable diligence have ascertained all the damage.
N. E. Weerasooria, for plaintiff, respondent.—Sections 34 and 207 aredirected towards exhausting the relief in respect of the same cause ofaction. These are different causes of action which we have here. If theplaintiff had included in the earlier action the damages she claimed inrespect of the breach of the covenant to repair she could have been metwith the defence that the lease was still subsisting and that the defendantwas ready and willing to hand over the property, upon termination of thelease, in the same state of repair in which he had received it. That washis only obligation to the plaintiff on the covenant to repair. The causeof action in the present case had not accrued at the time of filing theearlier one.
Cut. adv. vult.
March 5, 1937. Poyser J.—
By a lease No. 1,506 of October 5, 1925, the plaintiff leased to thedefendant certain premises situated at Colpetty in Colombo.
On March 14, 1933, the plaintiff (D. C. Kandy, No. 43,515), sued thedefendant for arrears of rent and for cancellation of the lease abovereferred to on the ground that the defendant had contrary to the terms ofthe lease, sublet the premises to one C. D. Armstrong.
On September 12, 1933, the defendant moved that the plaintiff’sapplication for cancellation of the lease be allowed, this motion was agreedto, the lease was cancelled and the plaintiff put in possession of thepremises on October 1, the case then proceeded only on the question ofarrears of rent.
IT N.M.'R. 410.
7
POYSER J.—Vanderpoorten v. Peiris.
The plaintiff on this cause of action obtained judgment for Rs. 1,500 oir.January 8, 1934, and such judgment was affirmed in appeal on February12,1935.
In this action the plaintiff claimed damages on the following grounds—(5) For a first cause of action. The defendant in breach of the saidcovenants (i.e., covenants contained in lease No. 1,506) failed and neglectedto keep the premises in proper order and condition and grossly neglectedthe same whereby the following among other acts of damage were done tothe buildings : — (a) The plaster work of the walls and the cement flooringbroken up. (b) The roof of the lavatory removed leaving the wallsexposed to the elements, (c) The roof tiles of- the main building brokenand in places moved out of position causing serious leakages andconsequent damage, (d) The eaves rafters cut to allow access to motorvehicles to the porch of the building, (e) The valley gutters left leaking,thereby damaging the walls. (/) The eaves gutters removed in places,(g) The glazed doors and sashes removed, (h) The eaves, barge boardsand sunshades allowed to fall into disrepair. (7) For a second cause ofaction.—The defendant having erected extra buildings and laid concretefloors in the compound of the leased premises removed the said buildingsbut failed and neglected to remove the concrete floors and- to restore thecompound to its former condition.
The Judge has awarded the plaintiff Rs. 750 on the first cause of actionand on the second Rs. 600.
On appeal it was contended on behalf of the defendant, in view of theprovisions of sections 34 and 207 of the Civil Procedure Code that, so faras this action was concerned the decree in D. C. Kandy, No. 43,515, wasres judicata and the following points were urged in support of thiscontention. That as the plaintiff had elected in case No. 43,515 to treatthe lease as cancelled they should in that case, have included all thecauses of action which had then accrued to them and that the dilapidationand damage now alleged were not concealed and could easily have beenascertained before that action was filed as the lessor had the right to visitand inspect the premises at any time.
It was also pointed out that Mr. Hall, who gave' evidence in regard tothe dilapidations and damage and whose evidence the trial Judge accepts,stated that there had been four, five, or six years of neglect and ‘‘ the —damages looked as if they had been accumulating damages
Mr. Hall did not state on what date he inspected the premises but itmust have been before October 12, 1933, thus practically all the damageto the house, if not all, must have been caused before case No. 43,515was filed.
Having regard to the wording of section 34 of the Civil Procedure Code,
I think the appellant’s contention must succeed.
The Privy Council have made the following observations in referenceto a similar section in the Indian Civil Procedure Cqde : —
“ That section does not say that every suit shall include every cause
of action or every claim which a party has, but every suit shall include
the whole of the claim arising out of the cause of action ….
meaning the cause of action for which the suit is brought. ”
39/6
B
Munasinghe v. Eliyatamby.
Pittapur Raja v. Suriya Row'. Both in this case and the previous onethe cause of action was the same, viz., the breach of covenants'containedin lease No. 1,506. If in the first action the plaintiff had not claimed acancellation of the lease and possession of the leased premises the positionwould have been different or it would have been different if the plaintiffhad not at their disposal the materials necessary for including in theirclaim in the previous action the subject-matter of this one.
As previously pointed out, however, the plaintiffs could easily haveascertained, if they did not already know, the damage caused to thepremises by the defendant and particularly so the construction of theconcrete floors and could have without difficulty included in the previousaction a claim in respect of these matters. There is no local decisionquite in point, but in the case of Mohideen v. Pitche * Wood Renton A.C.J.lays down similar principles to those above set put.
I would allow the appeal and dismiss the plaintiff’s action with costsboth here and in the Court below.
Soertsz J.—I agree.
Appeal allowed.