PEMALATHA AND ANOTHER

Vs.

JAYAWARDENA AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA, J.
CA/648/1999/F
DC AVISSAWELLA 18031/P

Civil Procedure Code, section 87, 403-Dismissal of an action for want of appearance of the plaintiff on the trial date-Positive bar to the maintainability of a subsequent action-Res judicata-Abatement-Abuse of process of the partition law

A previous action filed by the plaintiff for declaration of title to the land in suit and ejectment of the 2nd and 3rd defendants was dismissed in terms

of section 87(1) of the Civil Procedure Code for want of appearance of the plaintiff on the trial date. Soon after the said dismissal, the plaintiff filed a partition action seeking predominantly the same reliefs. The District Court entered judgment as prayed for by the plaintiff. On appeal, the contention of the 2nd and 3rd defendants before the Court of Appeal was that the matter was res judicata between the plaintiffs and the 2nd and 3rd defendants, and therefore the partition action could not have been maintained.

Held:

1. In terms of section 87(2) of the Civil Procedure Code, if an action is dismissed due to the absence of the plaintiff on the trial date, the plaintiff shall be precluded from bringing a fresh action in respect of the same cause of action. This is not res judicata in the true academic sense but a positive bat to the institution of a fresh action on the same cause of action.

2. The plaintiff filed the partition action soon after the abortive declaration of title and ejectment action, seeking to vindicate his title to the property and ejectment of the 2nd and 3rd defendants. The Intention of the plaintiff in both actions was the same: to eject from the land the 2nd and 3rd defendants who, according to the plaintiff, had no soil rights to the land.

3. The cause of action upon which a partition action is based is the inconvenience of common ownership. However the partition action was not filed to end common ownership. The filing of the partition action was an abuse of the provisions of the partition law. The plaintiff's second action shall fail.

Cases referred to:

1. Herath v. Attorney General (1958) 60 NLR 193 at 222
2. De Silva v. Juwa (1935) 37 NLR 165
3. Abeysundera v. Babuna (1925) 26 NLR 459
4. Selenchi Appuhami v. Livinia (1905) 9 NLR 59

APPEAL from the Judgment of the District Court of Avissawella.

Ranjan Suwandaratne, P.C., with Anil Rajakaruna for the 2nd and 3rd Defendant-Appellants.

H. Withanachchi with shantha Karunadhara for the Plaintiff-Respondents.

cur. adv. vult.

January 1, 2019

SAMAYAWARDHENA, J.


The three plaintiffs filed this action against the three defendants seeking to partition the land described in the schedule to the plaint between the 3rd plaintiff (subject to the life interest of the 1st and 2nd plaintiffs) and the 1st defendant in equal shares. The 2nd and 3rd defendants, according to the plaint, were made parties because they are in forcible occupation of the land without any soil rights. The 1st defendant did not contest the case of the plaintiff.

The only contesting defendants were the 2nd and 3rd defendants who are wife and husband respectively. The 2nd defendant is not an alien. She is the daughter of the 1st and 2nd plaintiffs, and the sister of the 3rd plaintiff.

The 2nd and 3rd defendants took up two positions at the trial. One is they have prescribed to the land-vide issue Nos. 9 and 10. The other is the plaintiffs cannot maintain this action on res judicata in view of the decree entered in case No. 17478-vide issue Nos. 11 and 12.

The learned District Judge held against the 2nd and 3rd defendants on both points and decided to partition the land as prayed for in the plaint.

It is against this Judgment that the 2nd and 3rd defendants have preferred this appeal.

When this matter came up before me for argument on 26.07.2018, the learned President's Counsel for the 2nd and 3rd defendant-appellants informed Court