Dabare v. Appuhamy

014-SLLR-SLLR-1980-V-2-Dabare-v.-Appuhamy.pdf


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Dabare v. Appuhamy
COURT OP APPEAL.
ABDUL CADER, J. AND L. H. BE ALWIS, J.
C. A. (L. A.) 12/80—D. C. COLOMBO 292/re.
AUGUST 4, 1980.
Res judicata—Plea taken by defendant—Whether adjudication on themerits necessary—Procedure followed in first action contrary to that laiddown by law—No objection taken by plaintiff—Whether such defect inprocedure affects validity of judgment in earlier action.
llTe plaintiff-respondent filed an action in the Magistrate’s Court',Colombo against the appellant for the latter’s ejectment from certainpremises. This action was dismissed as the plaintiff-respondent and hisattorney-at-law were absent on the date fixed for preliminary inquiry.The respondent made an application to have this order of dismissal setaside but after hearing parties the learned Magistrate refused the appli-cation. The plaintiff-respondent then filed a second action in the DistrictCourt and the plea was taken that the judgment in the first case opera-ted as a bar to the institution of the second action in the District Court.This was tried as a preliminary issue and it was also submitted on behalfof the respondent that the learned Magistrate had in the first actionfollowed the wrong procedure and that he did not’ have jurisdiction toadopt the procedure that he did. The learned District Judge held that*dismissal of the earlier action did not operate as res judicata since therewas no adjudication on the merits in that action.
Held
The dismissal of the action filed by the plaintiff-respondent in the Magis-trate’s Court operated as res judicata and accordingly the second actionfiled by the plaintiff-respondent should be dismissed. Even though the ,Magistrate had followed the wrong procedure the order of dismissalmade by him was valid since he had jurisdiction to hear and determinethe action and further the plaintiff-respondent himself did not takeobjection to the wrong procedure being followed.
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Cases referred ti
Herath v. The Attorney General, (1958) 60 N.L.R. 183.
Dharmadasa v. Piyadasa Perera. (1961) 64 N.L.R. 249.
Annamalay Chetty v. Thornhill, (1932) 34 N.L.R. 381.
APPEAL from the District Court, Colombo.
E. M. B. Ekanayake, for the appellant.
M. S- M. Nazeem, with M. Farouk Thahir, for the respondent.
Cur, adv. vuh.
September 17,1980.
ABDUL CADER, J.
On 3rd October, 1974, the respondent to this appeal filed actionto eject the appellant from the premises described in schedule Cand for damages under No. 182/L in the Magistrate’s Court ofColombo. The Magistrate fixed it for preliminary inquiry on15.2.77 and the plaintiff and his Attomey-at-law being absent, hedismissed the action. On 11.3.77, the respondent filed papers tohave the dismissal set aside (D1A) and after hearing bothparties who were represented by Counsel on 28.3.77, the. Magistrate refused to set aside the order dismissing the action.Thereafter, the plaintiff filed this action No. 292/RE in theDistrict Court of Colombo and among the issue raised at thetrial, two issues were tried preliminarily.
“ (6) In any event, does the judgment in Casp No. 182/L ofthe Magistrate’s Court operate as a bar to the institu-tion of this action ?
(7) If so, can the plaintiff have and maintain this action ? ”
The learned Additional District Judge, following a reporteddecision (1) held that there has been no adjudication on meritsin case No. 182/L and, therefore, the dismissal of the plaintiff’saction in No. 182/L does not operate as res judicata. It is againstthis order that the defendant in that action has appealed.
Counsel for the appellant drew our attention to the case ofDharmadasa v, Piyadasa Perera (2) wherein Gunasekera, J. dis-agreed with the view expressed by Basnayake, C.J. in the casereported in (1) and submitted that the learned District Judge hadcome to a wrong decision in holding that the principle of resjudicata would not operate.
: Counsel for the plaintiff-respondent stated there are certaincircumstances in this case which made the case (1) applica-ble to the facts of this case as the Magistrate did not have juris-'diction to follows the procedure that he adopted leading to thedismissal of the plaintiff’s action. He submitted that this was anaction filed in the Magistrate’s Court under the provisions of the
Sri Lanka Law Reports
(1980) 2 S.L.R,
56
Administration of Justice Law, No. 25 of 1975. Section 363(2) requires the Magistrate to proceed by way of summary proce-dure. Trial by way of summary procedure is outlined iromsections 564 to 571 of the said Law. Section 565 requires theMagistrate to enter either order nisi or interlocutory decree andserve a copy on the respondent to the action. This, the Magistratefailed to do, but instead followed the provisions of regular pro-cedure by fixing the matter for preliminary inquiry and it wasat this stage of the preliminary inquiry that the Magistrate dis-missed the action, when the plaintiff-respondent was absentCounsel urged that since the Magistrate adopted a procedure.which he was not empowered to adopt, the Magistrate had nr. jurisdiction to dismiss the plaintiff’s action.
In the first place, it is the plaintiff in an action who shouldbe wary about the procedure adopted by Court to conduct thtstrial. After all, it is his grievance that the Court is investigatingand it is his business to assist the Court to see that the properprocedure is being followed. The journal entry containing thedate on which the matter was fixed for preliminary inquiry hasnot been produced. If it is the contention of the plaintiff-respon-dent that he was not to blame, it was his burden to produce thatjournal entry. I would, therefore, be entitled to assume that whenthe Court fixed the matter for preliminary inquiry, at the leastit is the plaintiff-respondent who virtually permitted the Courtto adopt a wrong procedure and, consequently, is to be blamed.
Secondly, at the first opportunity that the plaintiff had toprotest agains the wrong procedure after the order of dismissalwas made, he acquiesced in the procedure followed by Court andfiled papers to have the order of dismissal set aside on the groundof ill-health. He did not contend that the Court had adopted thewrong procedure. After the Court made order refusing to setaside the order of dismissal, the plaintiff-respondent did not seekrelief from a superior Court to set aside that order, but insteadfiled this case No. 292/RE.
Thirdly, in the case of Annamaly Chetty v. Thornhill (3)Garvin, S.P.J. stated as follows :—
“ The ordinary jurisdiction of the District Court of Ratna-pura in which the action No. 4,122 was instituted extendedto the parties as well as to the subject matter of the action.The plaintiff averred that that Court had jurisdiction togive him the relief claimed upon the cause of actionpleaded. If then the matter was within the general jurisdic-tion of the Court can it be urged that that jurisdiction was
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Dabare v- Appuhamy (Abdul Cader, J.)
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ousted by the provisions of section 9 of the Business NamesOrdinance, No. 6 of 1918, which rendered the claim unen-forceable by action ? It is in the nature of a condition imposedupon a person carrying on business under a business namewith which he must comply before he can enforce by actiona claim upon a contract made in connection with his business.The provision is one which Bertram, C.J. thought a Courtof law should enforce ex mero motu when it came to itsnotice that the plaintiff had failed to comply with it. Hada Court in ignorance of any such infringement proceededafter trial or without objection to determine the claim on itsmerits it could not be successfully urged that its decree wasnot the decree of a Court of competent jurisdiction and didnot therefore operate as res adjudicata. The requirement ofregistration of a business name operates as a condition uponwhich the exercise of a Court’s jurisdiction may be invoked ;possibly as a condition of the exercise of its jurisdiction.‘But the competency of a Court’s jurisdiction over a suit
is not affectedby the conditions or mode of its
exercise ’ Hukm Chand on Res Judicata, section
181, p. 449.”
In case No. 182,'L, the Court had jurisdiction to entertain theplaint, to hear the parties and to dismiss the action. I am of theopinion that the adoption of wrong procedure would not affectthe jurisdiction of the Magistrate. He had jurisdiction to dismissthe action for want of appearance and that, I believe, is the cruxof the matter. As Garvin, S.P.J. stated, “ Had a Court in ignoranceof any such infringement proceded after trial or without objec-tion to determine the claim on its merits, it could not besuccessfully urged that its decree was not the decree of a Courtof competent jurisdiction and did not therefore operate as *esadjudicata. ”
I am in respectful agreement with the view expressed therein.No authorities have been cited either by way of decisions or fromtext book writers that the failure to follow the procedure woulddefeat the jurisdiction of the Court. On the other hand, HukinChand says at page 449 in the Law of Res Judicata :—
“The competency of a court’s jurisdiction over a suitis not affected, however, by the conditions or mode of itsexercise, by the legal character or position of the suit, or theprocedure prescribed for its cognizance or disposal,”
I have, therefore, come to the conclusion that the order madeby the Magistrate dismissing the plaintiff’s action in case No.182/L was a valid order and, therefore, would operate as res-adjudicata.
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Sri Lanka Law Reports
(1980) 2 S.L.R.
For all these reasons, I have come to the conclusion that theorder of the Additional District Judge should be set aside andissues 6 and 7 should be answered as follows:—
Yes.
No.
Therefore, action No. 292/RE is dismissed with costs in bothCourts.
H. BE ALWIS. J.—I agree.
Appeal allowed.
K. Theverajah,Attorney-at-law.