DE KKETSER J.—Velastpilloi v. Kanapathipillai.
1941Present: de Kretser and Wijeyewardene JJ.
VELASIPILLAI v. KANAPATHIPILLAI.
258—D. C. Jaffna, 152.
Res judicata—Priciple to be applied^—Matter directly and substantially inissue in previous case—Provisions of Civil Procedure Code notexhaustive.
The decision of a Court upon a matter, which has been directly andsubstantially in issue between the parties will operate as res judicatain a subsequent action.
The provisions of the Civil -Procedure Code are not exhaustive of thelaw of res judicata in Ceylon.
Appuhamy v. Punchihamy (17 N. L. R. 271) and Rowena Umma-v. Pathumma Umma (41 N. L,. R. 522) distinguished.
PPEAL from a judgment of the District Judge of Jaffna.
N. Nadarafah for 4th and 5th defendants, appellants.
L. A. Rajapakse, for plaintiffs, respondents.
Cur. adv. vult.
July 24, 1941. de Khesteb J.—
One Kander Subramaniam was married to one Kanthipillai and had twochildren named Ponnachipillai and Thinagaranather. The latter was thefather of one Rajasekaram, who brought an action in the Court of Requests,Point Pedro, No. 25,417, against his aunt Ponnachipillai and her husbandto have a certain land partitioned. In a pedigree which he invokedappear certain names, and it is said that this document should be readas indicating that the land belonged to Kanthipillai by right of inheritance.Certain parties intervened to claim rights. Their position was that theland belonged to Subramaniam and not to his wife Kanthipillai, and theyalleged that Subramaniam had contracted another marriage with oneAlvattai by whom he had two children, Sanmugam and Eledchimipillai,two of the added defendants. The original parties in that case alleged thatthese two persons were not children of the Subramaniam who marriedKanthipillai. At the trial issues were stated as follows: —
Are the 2nd and 3rd added parties the legitimate children ofKander Subramaniam along with the 2nd defendant and the father ofthe plaintiff (i.e., Ponnachipillai and Thinagaranather) ?
Are the 2nd and 3rd added parties children of another KanderSubramaniam by one Alvattai ?
DE KRETSER J.—Velasipillai v. Kanapathipillai
The trial Judge answered the first issue in the negative and the secondin the affirmative. . He also held on prescriptive possession and ordered apartition. He did not decide whether the land belonged to Kanthipillai orto Subramaniam. The added defendants appealed, and this Court heldthat the evidence in support of the alleged second marriage was moatunsatisfactory and dismissed the appeal with costs.
The plaintiff in the present case traces his title from Ponnachipillai, andthe issue was raised whether the decree in C. R., Point Pedro,No. 25,417, operated as res judicata. The trial Judge held that it did,and the appeal is from that ordgr. Before us it was argued that theearlier decree was not res judicata for two reasons, viz., (a) that there weretwo questions which arose in that case, one of them being whether the landbelonged to. Kanthipillai, and as the decision of that question in theplaintiffs’ favour was sufficient to deprive the added defendants of theirrights, any decision on any other points was only incidental; (b) thatwhere there are two grounds on which a court decides a case, the findingwhich in logical sequence of issues was the first—if such finding rendereddecision on other issues unnecessary—was the finding which operated asres judicata. We were referred to the case of Appuhamy v. Punchihamy 1and of Shib Charan Lai v. Raghu Nath'.
The facts of this case are materially different from those of Appuhamy v.Punchihamy. In that case the Court’s decision on a question of legitimacymeant the dismissal of plaintiff’s action and the Judge proceeded to saythat there was another ground for dismissal. Quite clearly he had arrivedat the conclusion that the action should be dismissed and adjudication onany further issue was therefore unnecessary and really obiter. Theargument on appeal proceeded on the footing that the Judge had dis-missed the action on both grounds and it was sought to ascertain whichground should operate as res judicata. It was held that the plaintiff hadfirst to establish his status before any other question needed attention.We need not stop to discuss the question whether this was a satisfactoryway of dealing with the matter. In the present case the evidence beforeus is that the decree in the Court of Requests case was not based on twogrounds but substantially on one ground only. There is no uncertaintyas to the gound on which the decree was based. But that does notconclude the matter, for in order to arrive at his ultimate decision therewere substantial issues which the Judge had to decide and they all formedthe media on which his decree was founded. He had to decide, no doubt,whether the land belonged to Kanthipillai, but in addressing himself tothat question he had to consider the contention that it belonged toSubramaniam, and in considering that contention it "was. necessary todecide the status of the persons who raised it. Their status thereforecame well to the forefront. That was how parties understood the matterand that was how they presented their case. It was not a matter whichwas decided incidentally but one to which the parties devoted almost theirwhole attention. From the point of view of the original parties in thatcase it mattered little whether the land belonged to Kanthipillai or to *
1 17 N. L. R. 271.
* I. L.R. 17 All. 174.
DE KRETSER J.—Velasipillai v. Kanapathipillai.
Subram an i am. The vital question was whether the claimants also werethe children of Subram aniam.
We were also referred to the case of Rowena Umma v. Pathuma VmmaThat case does not help the plaintiff for there, although the Courtincidentally held in favour of the plaintiff on a question of registration, itheld against her on another point and dismissed her action. The mainissue was whether she could maintain the action and once that wasdecided against her it was unnecessary to decide any other point. Noparty against whom an adverse decision was made could appeal once theplaintiff’s action had been dismissed.
Having dealt with the contentions -> raised by appellants’ Counsel, Iventure to say that they arise from an inadequate conception of the lawof res judicata. It has always been the policy of the law that thereshould be an end of litigation : interest reipublicae ut sit finis litium. Thesame idea finds expression in the maxim Nemo debet bis vexari pro una eteadem causa. Once therefore parties have been at issue regarding amatter, the decision on that matter should be final, but as the consequencesare so serious it is necessary to make sure that the attention of the partiesand of the Court was directed to that particular matter and that it didnot receive consideration only incidentally.
In, India, section 11 of the Indian Code of Civil Procedure states that“ No Court shall try any suit or issue in which the matter directly andsubstantially in issue has been directly and substantially in issue in aformer suit between the same parties”. (I give only a portion of thesection.) What is required is that the matter should have been directlyand substantially in issue. The section is dealt with by Sarkar in the 1934edition from page 91 onwards. He quotes decisions in support of hisstatement that the doctrine of res judicata should be liberally construed,and that it is the spirit of the law and not its letter which should be thegoverning factor, the soul of the rule rather than its outward form. Healso says that it is not necessary that the finding should form the basis ofthe decree in the former suit, though it may be one of the matters to beconsidered in deciding whether the matter has been directly and sub-stantially in issue in the previous suit. He expresses the opinion that thequestion has to be determined not on a consideration whether thecontroverted point was essential or necessary to the decision of the formersuit but on the question whether the matter was directly and substantiallyin issue in the former suit ; and he points out that the word substantialhas not such a stringent signification as the word “ essential ” or the word“ necessary ”. He goes on to say that no invariable rule can be laid downas to what is a substantial question except that if the parties by theirconduct of the litigation clearly treated it as a substantial question andif the Court also treated it as a substantial question, it would be almostconclusive to show that the question was substantially in issue. Rama-swamy v. Vanamamalai* and Muhammad Abdul Adir v. Jnanchandra *are quoted in support of the proposition that parties and the Court mayelevate what was originally ancillary or incidental to the position of beinga direct and principal issue in the case. These cases are not available
1 41 N. L. X. 622.
* 26 J. C. 873.
» 32 J. C. 738.
DE KRETSER J.—VelaMpillai v. Kanapathipillai.523
Sarkax also quotes authority for the proposition that if in a previoussuit a Court, having a question before its mind and specially brought toits notice by a party or put in issue without protest and upon whichevidence is led, decides such an issue, that decision will operate as resjudicata.
The decisions of the Indian Courts may or may not be influenced by theterms of their Code, but I have quoted sufficiently to show the very broadprinciples upon which a number of these decisions have been founded.Section 11 of the Indian Code has been held not to be exhaustive of thedoctrine of res judicata. Similarly our code has been held not to beexhaustive of the law of res judicata.
In Dingiri Menika v. Punchi Mahatmaya Wood Renton J. expressed theopinion that our code was not exhaustive of the subject. In Samvchi v.Pieris *, the same view was expressed by Lascelles C. J. and Wood Renton J.,
Pereira J. dissenting. Lascelles C. J. said (p.261)“ The law
of res judicata has its foundation in the Civil Law, and was part of theCommon Law of Ceylon long before Civil Procedure Codes were dream of.But even if these sections do contain an exhaustive statement of the lawon this point, I cannot see that there is anything in them which isinconsistent with the principles which have been followed in the English,Indian, and American Courts”. In Senaratna v. Per era * Jayawardene J.considered the question as to when a decision can be res judicata betweendefendants and stated the circumstances in which such a plea wouldprevail. He too thought that our code was not exhaustive on the subjectand quoted his own judgment in the case of Velupillai v. Mutthipillai *where he said—“ Generally speaking estoppel by res judicata may ariseeither where there is identity of ‘ cause of action ’ or where there isidentity of ‘ point in issue ’ ”.
There can be no doubt but that' the question – of legitimacy wasprominently before the minds of the parties in the earlier action, and thatit was prominently before the minds of both the lower Court and thisCourt on appeal. Parties deliberately put it as a matter directly andsubstantially in issue, and it was so in fact. It would be a violation of theessential principles of res judicata if we were to hold that that question isnot now res judicata. In our opinion the appeal fails and must bedismissed with costs.
There is also an application for restitutio in integrum made by theappellants: It appears that at the trial they came to a settlementregarding a part of the land in dispute because they believed that thedecree in the Court of Requests case would operate as a bar in favour ofsome parties. Having decided to appeal they wished to be relieved inthe event of their succeeding on their appeal. They have failed andtherefore their application must be dismissed. This does not mean thatthe application had otherwise any merit in it.
Wijeyewardene J.—I agree.
s 26 N. L. R. 225.
* 25 N. L. R. 261.
1 13 N. L. R. 59.
* 16 N. L. R. 257.
VELASIPILLAI v. KANAPATHIPILLAI