127-NLR-NLR-V-57-SOOTHIRATNAM-widow-of-V.-Velupillai-et-al-Appellants-and-ANNAMMA-widow-of-.pdf
1954- Present:Gratfaen, J., and Gunasekara, J.SOOTHIRATNA3I (widow of V. VelupiUai) el al., Appellants, andANNAMMA (widow of Amirthalingam), Respondent
S. G. 403—D. G. Jaffna, 4,900jL
Abatement of action—Actio roi vindicatio—Transfer of subject-matter by plaintiffpending action—Effect of abatement order on separate action instituted by plain-tiff’s transferee—Civil Procedure Code, ss. 396 403, 404—Registration ofDocuments Ordinance, s. 11 (i) and (3).®■,
Section 403 of the Civil Procedure Code, which prohibits a fresh action beingbrought when an action has abated, directly affects only those persons who,while they are precluded from instituting separate proceedings on the same causeof action, nevertheless enjoy the alternative remedy of having the order of abate-ment vacated in order that the original action may be proceeded with*
A instituted against B an action for tho recovery of certain property. Thelis pendens was not registered. During the pendency of the action, A transferredthe property in dispute to C. Subsequently A died, and, as his legal represen-tatives took no steps to continue tho proceedings, an order of abatement was.mode by Court under section 396 of tho Civil Procedure Code. Boforo A’saction had abated, C had instituted the present action in his own right to havetho same defendant, B, ejected from the premises.
Held, that the provisions of section 403 of the Civil Procedure Code did notprevent the maintenance of the present action.
J^-PPEAL from a judgment of the District Court, Jaffna.
Ranganathan, for the plaintiffs appellants.
W. Tambiah, for tho defendant respondent.
Cur. adv. vull.
January 21, 1954. Gratiaen, J.—
On 23rd March 1946 tho appellant obtained from VelupiUai Vinasi-thamby for valuable consideration a notarial lease of the property indispute for a period of ten yeaxs commencing on 1st April 1946. He wasunable to obtain vacant possession of the leased pxemises, and on SthOctober 1948 he filed this action alleging that the defendant was a tres-passer on the pi'emises, and prayed inter alia for a decree of ejectmentagainst him. That such a remedy is prinia facie available to a lesseeof immovable property by virtue of the pro tanlo alienation in his favouris not disputed.• •
The defendant denied that he was a trespasser, and claimed to be theowner of the property by virtue of a title superior to that of the appeUant’slessor Yinasithamby. A number of issues were framed at the commence-ment of the trial, but, after some evidence had been led, certain additionalissues were raised which, in the submission of the defendant’s counsel,went to the root of the action. The learned Judge agreed to adjudicateupon these' additional issues in the first instance, and after hearing argu-ment upheld the defendant’s plea that the appellant was precluded frommaintaining the action by reason of certain, admitted facts which I shallnow proceed to examine.
It was established by the evidence that-, before the execution of thelease in favour of the appellant, his lessor Vinasitliamby had himselfinstituted a rei vindicatio action on 16th October 1044 against the defen-dant for the recovery of the property in dispute. Before the trial wasconcluded, however, Vinasitliamby died, and, as his legal representativestook no steps thereafter to continue the proceedings, an order of abate-ment was duly made by the trial Judge on 15th October 1948 in termsof section 396 of the Civil Procedure Code. It will bo observed that,before the date of this order, the appellant had already instituted thepresent action in his own right to have the defendant ejected from thepremises. Nevertheless, the learned Judge upheld the plea that thesubsequent order of abatement made in the action filed by Vinasitliambywas binding on the appellant and had the effect of precluding him frompursuing his independent remedy against the defendant.
The consequences of a valid order of abatement under section 396 orunder any other provision of Chapter 25 of the Civil Procedure Code areset out in section 403. It operates in personam so as to preclude aplaintiff (or his personal representative, as the case may be) from insti-tuting separate proceedings upon the same cause of action ; and his onlyremedy is to apply to have the order of abatement in the original actionvacated with the result that, unless this result is achieved, he cannotobtain a final adjudication of the merits of his claim against the oppositeparty. The principle involved is analogous to, but not the same as, t-liatwhich applies in the doctrine of res adjudicata. Shortly stated, the latterrule prohibits the re-agitation by a party (or his privy) of issues whichhave already been finally and conclusively settled by a concluded judicialdecision ; the former prevents a party whose failure to prosecute hisremedy with due diligence has led to a discontinuance of the action fromseeking relief on the same grounds in separate proceedings. On the otherhand, section 403 has no direct application to a lessee under the plaintiffor to any other transferee of an interest pending the action. If the actionhas not abated, he may, if he thinks fit, apply to be added or substitutedas a party under section 404; and if he docs not take that precaution heruns the risk of being adversely affected by the ultimate decree passedin those proceedings by the operation of the doctrine of lis pendens.But section 404 docs not apply to an action after it has abated and solong as it has thus ceased to be “ pending ” within the meaning of thesection.
There can be no doubt that Vinasithamby’s legal representativeswould be precluded from instituting fresh proceedings against the defen-dant upon the earlier cause of action. But the question is whether theorder of abatement is similarly binding upon the appellant whose rightto eject the defendant admittedly depends upon the validity of the titleof his lessor Vinasitliamby.
Section 403 primarily affects only a plaintiff or his legal representatives.It is unnecessary to decide for the purposes of this appeal whether aperson who, after the date of an order for abatement in an action relatingto property, purchases or obtains an interest in that property from theplaintiff, would be prevented (as a privy) by some other principle of law
from re-agitating the same issues in separate legal proceedings Insti-tuted on his own behalf against the same defendant. Wc are hero con-cerned with the position of a litigant whose alleged rights as lessee wereobtained before the order of abatement liad been entered against hislessor, and who had actually instituted legal proceedings for the enforce-ment of his independent remedy before the lessor’s action had abated.In such a situation, the provisions of section 403 do not prevent the main-tenance of the action which he had previously instituted in his own right.Section 403 directly affects only those persons who, while they areprecluded from instituting separate proceedings on the same cause ofaction, nevertheless enjoy the alternative remedy of having the order ofabatement vacated in order that the original action maybe proceeded with.
As I have already pointed out, the effect of an order of abatement isnot precisely the same as that involved in the doctrine of res adjudicala.But let us even assume that, instead of Vi nasi t ha m by’s earlier actionagainst the defendant having abated, it had factually proceeded to trialand finally terminated in a decree in favour of the defendant subsequentto the executioji of the notarial lease in favour of the appellant. Evenin that event, the final decree against Vinasithamby would not havebeen binding on the appellant unless the defendant relying on the decreein bar of the appellant’s remedy had proved that Its jwndens had beenduly registered in the earlier action—vide sections 11 (1) and 11 (3) of theRegistration of Documents Ordinance. In the present case, the defen-dant has not established due registration of the it's in which the order ofabatement against the appellant’s lessor was made after the date of thelease relied on by the appellant. For this reason, the preliminary issuesof law raised by the defendant should have been answered against himeven if the order of abatement could properly have been regarded as theequivalent of a final decree dismissing Vinasitliamby’s action.
I would set aside the judgment under appeal, and send the recordback for a trial dc novo. The appellant is entitled to his costs of appealand to his costs in the abortive trial. I desire, in conclusion, to pointout that the procedure adopted in the Court below was not in conformity.with that prescribed by section 147 of the Code. In an appropriate case,a trial may at the outset be confined to the disposal of preliminary issuesof law which are considered to go to the root of the litigation. But,after a trial has commenced for the determination of all the issues offact and law which properly arise, it should not bo interrupted at a laterstage for the intermediate disposal of some only of the issues. Such aprocedure is not warranted by the Code, and very often leads to unneces-sary delay and expense to litigants. For instance, the consequence of thelearned Judge’s erroneous decision on some issues in an action institutedin October 1948 is that the entire proceedings must now commence afresh.
If the learned Judge had insisted, as he should have done, on all theevidence being led at the earlier trial, the case might well have been finallydisposed of at the hearing of the present appeal upon a consideration ofhis recorded findings on all the issues.
• Getkasekaba, J.—I agree.
Judgment set aside.