D. P. D. KARUNARATNA and others, Appellants, and W. D. AMARISA, Respondent

135-NLR-NLR-V-66-D.-P.-D.-KARUNARATNA-and-others-Appellants-and-W.-D.-AMARISA-Respondent.pdf


TAMBIAH, J.—Karunaratna v. Amarisa
567
1964Present: Tamblah, J., and Sri Skanda Rajah, J.P. D. KARUNARATNA and others, Appellants, andW. D. AMARISA, Respondent
S. C. 25/62 (Inty.)—D. G. Kuntnegala, 767jP
Rcb judicata—Jurisdiction of Court—Distinction between want of jurisdiction andexercise of jurisdiction—Right of parties by consent to waive objections to pro-cedure—Testamentary action- Issue of heirship—Jurisdiction of Court to decideit with consent of parties—Binding force of decision on the parties and theirsuccessors in title—Civil Procedure Code, s. 741.
Provided there is no inherent want of jurisdiction in the Court with regardto the person or the subject-matter, parties can, if they do not cause anyviolent strain upon procedure, arrange their own procedure by consent and givejurisdiction to the Court to adopt that procedure, although such procedure isnot prescribed by any of the provisions of the Civil Procedure Code.
Accordingly, in a testamentary action, it is competent for the Court to decidea question of heirship presented to it with the consent of the parties. In such acase, the order of the Court, even if it “ could not have been made underany of the provisions of the Civil Procedure Code governing testamentarysuits ”, would operate as res judicata as between those who subsequently claimthrough the parties.
./VpPEAL from a judgment of the District Court, Kurunegala.
H. W. Jayewardene, Q.C., with T. B. Dissanayake, for the 2nd to 8thD efendants-Appellants.
N. E. Weerasooria, Q.C., with W. D. Gunasekera, for the Plaintiff-Respondent.
Cur. adv. wit.
February 24, 1964. Tamblah, J.—
The facts relevant to this appeal are set out in the judgment of mybrother Sri Skanda Rajah with whose conclusions I agree. Since animportant point of law was raised by the appellants’ counsel, I wish tomake a few additional observations.
568
TAJVLBIAH, J.—Karunaratna v. Amarisa
The doctrine of Res Judicata, based on the two Latin maxims “ Nemodebet vis vexari pro una et eadem causa ” and “ Interest republicae ut sitfinis litium ”, is a plea which bars subsequent action on the same cause ofaction between the same parties on the ground that the matter has beenjudicially determined and is a safeguard against unnecessary litigationover the same matter. The doctrine operates when the followingessentials are present:—
There must be a judgment of a court of competent jurisdiction
(Ibrahim Baay v. Abdul Rahim A).
There must be a final judgment (Fernando v. Menika 2).
The case must have been decided on its merits (Annamalai Chetty
v. Thornhill 3).
The parties must be identical or be the representatives in interest
of the original parties (Sivakolunthu v. Kamalambal 4).
The causes of action must be identical (Dingiri Menika v. Punchi
Mahatmaya 5).
In the instant case, the order made in D. C. Kurunegala Case No. 1503 Toperates as Res Judicata on the issue as to the heirship of Poola. Theparties to the proceedings in that case were “ Blmali ”, the predecessorin title of the plaintiff and the first defendant, and “ Bali ”, the prede-cessor in title of the second to eighth defendants in the instant case, andone Horatale. Bali, who was a minor at that time, was duly representedby a guardian-ad-litem.
Mr. Jayewardene, the appellants’ counsel, contended that the DistrictCourt of Kurunegala had no jurisdiction to decide the issue in D. C. CaseNo. 1603 T. Want of jurisdiction should be clearly distinguished from thewrong exercise of jurisdiction. Whenever a decision is found to be wrongin law or violates a rule of procedure, the Court which delivered such adecision cannot be regarded as incompetent to deliver such a decision(vide the observations of Wijeyewardene J., in Haniffa v. Coder6). Inthe words of Sir Asutosh Mookerjee, A. C. J., in Hriday Nath Roy v. RamChandra Barna Sarma7: “Since jurisdiction is the power to hear anddetermine, it does not depend either upon the regularity of the exerciseof that power or upon the correctness of the decision pronounced, forthe power to decide necessarily carries with it the power to decide wronglyas well as rightly ….” (cited with approval by Gunasekara
J., in Weerasooria v. Controller of Establishments8).
Mr. Jayewardene relied on a dictum of Macdonell C.J., in the case ofSinniah v. Murugesu9 in support of his contention. But the ratiodecidendi in that case was that the order relied upon did not give rise to aplea of Res Judicata as it was vague and did not conclusively decide the
1 (1909) 12 N. L. B. 177.•(1910) 13 N. L. R. 59.
(1906) 3 Bal. 115.•(1941) 42 N. L. R. 403at 406.
(1932) 34 N. L. R■ 381.*A. I. R. 1921 Cal. 34.
(1953) 56 N. L. R. 52.• (1949) 51 N. L. B. 189 at 191.
* (1935) 3 C. L. W. 134.
SRI SKANDA RAJAH, J.-—Karunaratna v. Amarisa
569
matter in issue. In an obiter dictum, MacdoneH C.J., observed that,apart from the provisions of section 741 of the Civil Procedure Code,there are no other provisions in the said Code empowering a court, intestamentary proceedings, to decide questions of title to immovableproperties. Mr. Jayewardene conceded that in judicial settlementproceedings, in an appropriate case, the court exercising testamentaryjurisdiction may find it necessary to decide on title to immovableproperty. Thus, for example, in accounting for mesne profits, questionsof title may be gone into.
In the instant case, the mere fact that at an earlier stage of the testa-mentary proceedings the question of heirship was decided did not deprivethe court of its inherent jurisdiction to hear this matter.
In D. C. Kurunegala Case No. 1503 T., the parties invited the Courtto decide on the issue as to the heirship of Poola. Where the Courtdoes not suffer from an inherent want of jurisdiction with regard to thesubject-matter before it or vith regard to the persons, parties should beheld bound to the agreement that questions between them should be heardand determined in proceedings quite contrary to the ordinary cursuscuriae (vide Hriday Nath Roy v. Ram Chandra Barna Sarma (supra) atpage 687).
" Departures from ordinary practice by consent are of everyday occur-rence ” said Sir Molagne Smith, in delivering the opinion of the PrivyCouncil in Pisani v. The Attorney-General for Geballi 1 “ but unless thereis an attempt to give the Court a jurisdiction which it does not possess,or something occurs which is sucb a violent strain upon its procedure thatit puts it entirely out of its course, so that the court of appeal cannotproperly review the decision, such departures have never been held todeprive either of the parties of the right of appeal ”.
In the instant case, 1 am of the view that the learned District Judgehas correctly decided the issue of Res Judicata. The ap peal is dismissedwith costs.
Ski Skanda Rajah, J.—
This is an appeal in an action for the partition of the land calledKongahamulahena depicted as lots 1, 2 and 4 in plan No. 1529 of27.1.1960 (X) brought by the Plaintiff-respondent allotting to himselfand the Defendant-respondent a half share each. The 2nd to 8thDefendants-appellants intervened claiming the entire corpus forthemselves, on the basis that each of them was entitled to a one-seventh-share, and prayed that the Plaintiff’s action be dismissed.
Admittedly the land in question was the acquired property of onePoola, a Kandyan, by virtue of Settlement Order 676 (2D1). The lawof inheritance applicable in this case is the Kandyan Law.
1 30 Law Times 729 at 730.
570
SRI SKANDA RAJAH, J.—Karunaratna v. Amariea
Poola's mother was Elmali. Poola was married to one Horatali andthey had a eon named Baiya, who predeceased Poola, but left behind hismother, Elmali and an illegitimate daughter named Bali, whose childrenare the 2nd to 8th Defendants-appellants.
The Plaintiff and 1st Defendant claim through Elmali, on the footingthat it was she who inherited her son Poola’s acquired property by reasonof “ daru urume The appellants rely on the case of Appuhamy v.Lapaya1, where it was held that under the Kandyan Law where a persondies intestate leaving both legitimate and illegitimate children, hisacquired property is divided equally between them, for their contentionthat it was Bali, and not Elmali, who inherited Poola’s acquired property.
It would not become necessary to decide which of these two contentionsis right if the plea of res judicata, on which the plaintiff relies, prevails.In order to consider this plea it is necessary to set down certain facts insome detail.
On 2.4.1917 Horatali applied for letters of administration in respectof the estate of her late husband Poola in D. C. Kurunegala, Case No.1503 (Testamentary) (PI) alleging that she and Bah were his heirs. Sheprayed that Elmali be appointed guardian-ad-Utem of the minor Bah.(In view of the fact that certain necessary documents in the testamentarycase had not been produced at the trial of this case the original record ofthat case was called for and examined on the last day of argument. Ishall refer to some of them in due course.)
On 7.3. 1918 Elmali filed an affidavit in which she alleged thatHoratali was harassing her and was not allowing her to possess a naifshare of certain lands. On 13.6.1918 she filed an affidavit (P3) in whichshe averred : “ The deceased Poola whose estate is being administeredin the above case had a son who predeceased him leaving an illegitimatechild Bah. I am the sole heir at law of Poola and I am entitled to hisproperty by right of daru urume subject to the life interest of thepetitioner in the acquired property of Poola ”. In view of this HapuwaVelduraya was, with his consent, appointed guardian-ad-litem of theminor Bah. (This is borne out by the journal entry of 13.6.1918.Hapuwa Velduraya’s proxy granted on 8.10.1918 tc proctor SamuelMunasinghe is in the record.) On 16.12.1918 parties were present andan inquiry was held. Bah (through her guardian-ad-htem) was represen-ted by Mr. Munasinghe, Proctor. The administratrix was representedby her proctor Mr. Go mis. The issue framed was : “ Whether Bah isan heir ? ” The lawyers were heard and the learned District Judgedelivered his order (P6) on 13.1.1919 holding that “ Elmah is the heirof Poola
It is submitted for the appellants that this is in conflict with the decisionin the 8 N. L. R. case (supra) and is not in accordance with the law.On behalf of the plaintiff it is submitted that even if this finding of theDistrict Judge was wrong in law it operates as res judicata. The appel-lants seek to meet this submission with the argument that the District
1 (1905) 8 N. L. R. 328.
SRI SKANDA RAJAH, J.—Karunaratna v. Amarisa
571
Judge had no jurisdiction to decide this question in the testamentarycase and, therefore, it would not operate as re*, judicata. In support ofthis argument they rely on the case of Sinniah v. Muruge*,u l.
In the last mentioned case the parties had raised the question as to theownership of a piece cf land in a testamentary proceeding and the DistrictJudge did not decide that question but merely said, *' The property indispute is maternal property He did not say to whom he adjudgedthat property. This was held to be so vague that it did not concludethe rights of parties and, therefore, did not operate as res judicata. Iwould observe, with respect, that this was the ratio decidendi in the case,though Macdonell, C.J., went on to point out that that order could nothave been made under any of the provisions of the Civil Procedure Codegoverning testamentary suits.
Mr. Jayewardene based his submission on the observations ofMacdonell, C.J., quoted above.
Mr. Gunasekera submitted that the District Court had jurisdiction overtestamentary matters and in the exercise of such jurisdiction it was com-petent to such Court to decide the question of heirship. He also referredus to the followi ig passage in the case of Weerasooria v. Controller ofEstablishments 2 :—
" To quote the words of Sir Asutosh Mookerjee, A.C.J., in that case(Hriday Nath Roy v. Ram Chandra Bama Sarma, A. I. R. 1921, Calcutta34)—
‘ The authority to decide a cause at all and not the decision renderedtherein is what makes up jurisdiction ; and where there is jurisdictionof the person and subject-matter, the decision of all other questionsarising in the case is but an exercise of that jurisdiction ….
‘ Since jurisdiction is the power to hear and determine, it does notdepend either upon the regularity of the exercise of that power or uponthe correctness of the decision pronounced, for the power to decidenecessarily carries with it the powei to decide wrongly as well as rightly.
… There is a clear distinction between the jurisdiction of the
Court to try and determine a matter, and the erroneous action of suchCourt in the exercise of that jurisdiction. The former involves thepower to act at all, while the latter involves the authority to act in theparticular way in which the Court does act. The boundary between anerror of judgment and the usurpation of power is this : the former is
1 {1935) 3 C. L. W. 13d.
2 (1949) 51 N. L. R. 189 at 191.
572
SRI SKANDA RAJAH, J.— Karunaratna v. Amariaa
reversible by an Appellate Court -within a certain fixed time and istherefore only voidable, the latter is an absolute nullity. Whenparties are before the Court and present to it a controversy which theCourt has authority to decide, a decision not necessarily correct butappropriate to that question is an exercise of judicial power orjurisdiction.’ ”
In the case of Malkarujun v. Narhare1 Lord Hobhouse said, “ A Courthas jurisdiction to decide wrong as well as right. If it decider wrong, thewronged party can only take the course prescribed by law for settingmatters right; and if that course is not taken, the decision, howeverwrong, cannot be disturbed.” I would respectfully qualify this observ-ation by adding : provided the Court had the power to hear and determinethe dispute.
In the case of Marjan v. Burdh 2, it was held that when a Court hasjurisdiction of the subject-matter and the parties its judgment cannotbe impeached collaterally for errors of procedure. This case was referredto with approval by Weerasooriya, J. in Theivanaipillai v. Nalliah 3.
Parties can by consent waive objection to procedure. In the case ofMeenatchy Atchy v. Pal-aniappa Chettiar 4, Keuneman, J., said : “ ….
provided there is no inherent want of jurisdiction in the Court with regardto the subject-matter before it or with regard to the person, parties byagreement may arrange their own procedure and give jurisdiction to theCourt to adopt that procedure, and the parties should be held to the agree-ment that questions between them should be heard and determined byproceeding quite contrary to the cursus curiae ….”
Therefore, even if the order P6 “ could not have been made under anyof the provisions of the Civil Procedure Code governing testamentarysuits ” it was competent to the District Court to determine the questionof heirship which was presented to it by the parties. There was no in-herent want of jurisdiction in it with regard to the person or the subject-matter. Therefore, the order P6 was binding on Elmali and Bali, subjectto appeal, and would operate as res judicata as between those who claimthrough them.
In the result, I would dismiss the appeal with costs.
Appeal dismissed.
1 (1900) I. L. B. 25 Bombay 337 at 348.8 (1961) 65 N. L. B. 346.
* (1948) 51 N. L. B. 34.4 (1941) 42 N. L. B. 333 at 334.