SILVA v. PERERA

068-NLR-NLR-V-17-SILVA-v.-PERERA.pdf


( 206 )
1914.
♦
Present : Lascelles C.J. and De Sampayo A.J.
SILVA v. PERERA.
1—D. C. Kabutara, 5,263.
Claim in reconvention—Nature of—Power of Court to refect a claim inreconvention and refer party to another action.
A claim in reconvehtion. should be of such a nature that therespective claims of the plaintiff and the defendant'may be mutuallyadjusted, and a final decree entered in favour of one party or the ‘other. The claim in reconvention need not be based on, or con-nected with, the transaction or matter out of which the plaintiff'scause of action arises,* but' it should in its nature be capable ofbeing set off against or adjusted with the plaintiff’s claim. It iswithin the power of a court to refuse to allow a claim in reconventionto be set np if it is such as likely to cause embarrassment or toprejudice and*delay the trial of the action.
fJVHE iacts are set out- in the judgment.
Bawa, K.C. (with him Morgan de Saram)t. for the defendant,appellant.—The District Judge has no power to reject the claim in
( 207 )
reconvention. The claim in ^convention need not ’'have anyconnection with, the original claim.. See Babapulle v. Rajaratnam, 1Soy an. v. Soy so,.3 Our Procedure Code did not advisedly take overthe provisions, of the Indian Act limiting the claim in reconventionto matters connected with1 the claim in convention. In the DistrictCourt any cross-claim may be set up in the answer, but in the Courtof Bequests we should be guided by the English practice as tocounterclaims, and not by the rules of the Boman-Dutch law.
The evidence shows that the defendant was asked to. buy theland in his own name and transfer half to plaintiff. This dees notcreate a trust in favour of the plaintiff, but is only an agreementwhich could not be enforced, as it was not notarial. Amarasekerav. Rajapakaa3.
H. J. G. Perera (with him Canekeratne), for the plaintiff, respon-dent.—The Civil Procedure Code does not say what matters may beclaimed in reconvention. We must look to the law before theCivil Procedure Code for the. decision of the point. Section 4 of theCode enacts that where, no provision is made in the Code theprocedure existing before that date should continue. A claim inreconvention, according to. the Boman-Dutch law, should be ofthe same nature as the claim in convention. Van Leeuwen (Kotee’a),vol. II., pp. 409, 410.
In Soyaa v. Soy8a 2 Wood Benton J. seems to have overlooked theprovisions of section 35 of the Civil Procedure Code in deciding thecase. The defendant was in the nature of a plaintiff for the purposesof the claim in reconvention, and under section 35 he could nothave joined the various claims without leave of Court. Section 35 isa bar to the defendant’s counterclaim in this case.
In Soy8a v. Soyaa 2 and Babapulle v. Rajaratnam 1 the questionwhether the Court has a power to strike out a claim in reconventionwas not considered.
Counsel cited Dona Sophia v. Punchi Banda* Ahamadde Lebb.e v.Mutappa Chetty* 21 Gh. D. 138, 18 Bom. 719.
Defendant bought the land for the plaintiff with plaintiff'smoney. In the circumstances the defendant must be held to havebought the land in trust for plaintiff. (l5 N. L. R. 16; 9 N. L.
R.187, 189).
Bawa, K.C., in reply.—The effect of the decision in Dona Sophiav. Punchi Banda 4 is in favour of the appellant. It shows that evenunder the old law it would not be repugnant to a defendant to set upa foreign matter in reconvention, but that Courts had power tostrike out the claim for embarrassment.
Cur. adv. vvlt.
1 (1900) 5 N. L. R. 1.3 (1911) 14 N. L. R. 110.
« (1910) 5 Bat. 47.* (1884) 6 S. C. O. 39.
‘ Ram. 1860-62,191.
1914>
Silnov,
Perera.
( 208 )
1914.
SHva v.Terera
February 28, 1914. Lasoe^lbs C.J.—
This is an appeal from a judgment of the District Court of Kalu-tara declaring that the defendent purchased an undivided halfshare of the land called Rukmalgahahena in trust for the plaintiffpersonally and for him as executor of one Bernard Silva, andordering the defendant to execute a conveyance accordingly.
The objection which was raised in argument to this decree hasbeen removed by the plaintiff consenting to an amendment to thedecree, to which I shall presently refer.
The substantial ground of appeal is with regard, to the learnedDistrict Judge’s refusal to entertain the • defendant’s claim inreconvention.
The claim in reconvention is based on an agreement dated Decem-ber 8, 1906, between Bernard Silva, the plaintiff, and the defendantwith regard to mining operations oft certain lands belonging to thedefendant, including amongst other lands the land which is the. subject of the action. This agreement* provided for the division ofthe plumbago between the co-adventurers, and for the carrying onof a shop on a joint account in connection with the works.
The claim in reconvention avers that the accounts rendered by thedefendant are not. true and correct, that compound interest has beenimproperly charged, that the profits earned in the shop have notbeen accounted for, and sets out a number of alleged breaches ofthe agreement. The prayer in reconvention is for an account of theworking of the pits, for the cancellation of the agreement of Decem-ber 8, 1906, for the restoration of the defendant to the possessionof another land as well as that referred to in the plaint, for damages,and for the execution of an agreement by the plaintiff in terms ofhis letter of April 8, 1912.
The defendant-appellant contends that the District Judge had nopower to'decline to entertain his claim in reconvention. The questionis merely one of the powers of a Judge to reject a claim in reconven-tion. For if a Judge has a discretion in the matter, if it is competentto him to reject a claim in reconvention on the ground that it isembarrassing to the plaintiff, or because it cannot conveniently bedisposed of in the action, the present case is eminently one for theexercise of that power.
Mr. Bawa, for the defendant-appellant, contended that under theCivil Procedure Code the power to set up a claim in reconventionwas not less extensive than the power to set up a counterclaim underthe English practice,1 but that, on the other hand, there exists inCeylon no power on the part of the Court, analogous to that possessedby the English Courts, of disallowing or striking out a claim inreconvention on the ground that it cannot conveniently be disposedof in the action.
1 Rules of the Supreme Court, 0. 29, r 3.
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1 find it difficult to believe that our Code has placed no restrictionon the power of a defendant to set up a claim in reconvention. Thepresent case is an example of how the trial of a perfectly simplecase might be complicated and delayed by a claim in reconvention.
The provisions of the Civil Procedure Code with regard to claimsin reconvention are singularly meagre. In the part of the Coderelating to trials in District Courts, section 75 (e) is the only provisionwhich deals with the subject; and this is almost confined to mattersof form. The claim in reoonvention must be prepared in the sameform as a plaint; it has the same effect as a plaint in a cross-action,so as to enable the Court to pronounce a final judgment both on theoriginal and on the cross-claim.
But I do think that because the Code is silent as to any restrictionon the power of setting up claims in reconvention, it would be acorrect inference that no such restriction exists.
The claim in reconvention is not the creation of the Code. It isa procedure recognized by the common law of Ceylon long beforethe Code. The Code, when it gave directions as to the form andeffect of a claim in reconvention, must not, in my opinion, beunderstood to have removed the limitations which existed under thecommon law. The rule of the Roman-Dutch law is that “ the thingclaimed in reconvention must be of the same right, kind, and qualityas the matter claimed in convention, because they are as it were setoff and extinguished by compensation against each other, whichcannot take place in things that are in any way dissimilar/' 1
It is said that the decisions of this Court in Babapulle v. Ra]arattn)ani 2and Soysa v. Soysa 3 are not consistent 'with this view of the scopeof the claim in reconvention. In the first-named case Bonser C.J.stated that he was not aware of any authority for the propositionthat a claim in reconvention must arise out of or be closely connectedwith the original claim. There is nothing in this expression ofopinion which is inconsistent with the limitations laid down by VanLeeuwen. In the latter case Wood Renton J. enunciated the sameopinion. But, on the facts of the case, there is room for doubtwhether what was the' subject of the claim in reconvention wasstrictly “ of the same right, kind, and quality*as the matter claimed."Possibly in that case the claim in reconvention for. compensationmay be regarded as being of the same kind as the claim for rent,and the claim in reconvention for declaration of title as of the samekind as the claim to quit the premises. But, however this may be,the question now under discussion, namely, the question whetherthe defendant's right to set up a claim in reconvention is absolutelyunrestricted, was not raised in either of these two cases.
It has been suggested that the rejection of the claim in reconven-tion might be supported on the ground that it unites with a claim, for
1 Kot&s Van Leeuwen, vol. 11., p, 410.2 (1900) 5 N, L* if. 1, at page 4•
19_3 (1910) 5 BaX, 47.
1914.
T.AanTnr.-^pifl
O.J.
SUoTv.Perera
( 210 )
1914. the. recovery of immovable property, claims which are inadmissibleltM^^LR9 under section 35. But this., I think,, would be ground for requiring
J. amendment rather than for the. total rejection of the claim..
v. But, I think, for the reasons which I have indicated, that the claimPerem jp reconvention was properly rejected.
With regard to the amendment of the decree, counsel agreed thatthe following clause should be inserted after paragraph 4 of thedecree: “ That the plaintiff do execute in favour of the defendanta transfer of the half share of the land decreed to him as above,when all mining operations on the said land have ceased/’
Subject to the amendment/1 would dismiss the appeal with costs.
Db Sampayo A.J.—
I also think that the order relating to the defendant’s claim inreconvention is right. Considering the language of section 75 (e)and section 195 of the Civil Procedure Code, I am inclined to thinkthat a claim in recorivention should be of such a nature that therespective claims of the plaintiff and the defendant may be mutuallyadjusted, and a final decree entered in favour of one party or the other.The claim in reconvention need not, of course, be based on, orconnected with, the transaction or matter out of which the plaintiff’scause of action arises, but it seems to me that it should in its naturebe capable of being set off against, or adjusted with, the plaintiff’sclaim. The case Soysa v. Soysa 1 may appear at first sight to beagainst this view. But there the plaintiff sued for arrears of rentand ejectment of the defendant on the footing of a tenancy, and thedefendant denied the tenancy and set up title to a share of the land,and also reconvened for a certain sum of money as compensation forimprovements. The plea of title was in reality a mere defence to theaction, and the claim for compensation was of the same nature asthe claim for rent, and it therefore seems to me that that was a casein which an adjustment and set-off were possible. This view ismoreover confirmed by reference to the Roman-Dutch law, by virtueof which the right itself to claim in reconvenfcion exists in Ceylon.Van Leeuwen in his Commentary 2 says: ‘‘The thing claimed inreconvention must be of the same right, kind, and quality as thematter claimed in convention, because they are, as it were, set offand extinguished by compensation against each other, which cannottake place in matters that are in any way dissimilar.” In this casesuch a set-off or extinction is not possible. However this may he, Ihave no doubt that it is within the power of the Court to refuse toallow a claim in reconvention to be set up if it is such as likely tocause embarrassment or to prejudice and delay the trial of theaction. It is argued that inasmuch as the Civil Procedure Codedoes not expressly confer such power the Court must entertain a
> [1910) 5 Bal. 47.
* 2 Kotxt 409.
( 211 )
claim in reconvention of whatever kind or nature. But, in mjopinion, such express provision is not required; the Court has, Ithink, an inherent power in a matter like this. No doubt the Englishrules and the Indian Civil Procedure Code, upon which our CivilProcedure Code is in many respects based, do contain such an expressprovision in regard to a cross-claim made by a defendant, but thatfact does not necessarily indicate, as suggested by counsel for theappellant, that the Legislature deliberately intended to deprive theCourt of the power under special circumstances to exclude a claim inreconvention. In England and in India the whole right to set up across-claim is a creature of the. statute, whereas^ in Ceylon the right,as above pointed out, existed under the Roman-Dutch law beforethe enactment of the Civil Procedure Code. This fact, I think,explains the reason why our Civil Procedure Code is merely concernedwith the form of the pleading and of the final decree to be entered.Under the Roman-Dutch law the Court had a discretionary powerto prevent a case being prejudiced or delayed by a claim in recon-vention and to refer .the defendant to an independent action. SeeAhamadde Lebbe v. Mutappa Ghetty,l Doria, Sophia v. Pwichi Banda.2This being so, is there any good reason to interfere with the DistrictJudge’s discretion in the present case? The claim in reconventioninvolves the dissolution of a partnership, the taking of accounts of acomplicated kind, and the ejectment of the plaintiff from certainmining property of the partnership, and I have no doubt the DistrictJudge is right in refusing to go into the defendant's claim in recon-vention in this action, which as brought was merely concerned withthe specific performance of an agreement to transfer a land. Themodification of the decree in plaintiff’s favour as agreed to by bothparries is all that the defendant may reasonably ask.
Appeal dismissed.
♦1 Bam. 1S60-62, 191.
* {1884) 6. S. O. C. 39.
1914. .
Dk Sampato
A.J.
SUvav.
Perera