PONNAIAH v. PAYHAMY et al.

PONNAIAH v. PAYHAMY et al.

D. C, Kandy, 15,765.

Permission to bring fresh action-Institution of action before permission-Omission to plead one of several titles-Res judicata-Civil Procedure Code, s. 33.

A permission granted by the Appeal Court to a party to a suit to bring a fresh action does not render valid an action brought before such permission was granted.

Where a plaintiff brings an action for land, he must, under section 33 of the Civil Code, set out every title by which he claims to be entitled to it at the time of action. Where he omits to plead any title on which he might have relied in one action, he is debarred from setting up such title in a subsequent action.

APPEAL from a judgment of the District Judge of Kandy.

The plaintiff sued the defendants to vindicate a land called Tanenwatta. The defendants claimed the land, and also pleaded the decree in action No. 14,893 between the same parties as res judicata and a bar to the present action. In that action plaintiff claimed the land by right of inheritance, and when it was dismissed the plaintiff appealed, but before the appeal was decided brought the present action claiming the land on a transfer. In the appeal in the former action the dismissal was affirmed, but permission was granted to plaintiff to bring a fresh action, if so advised. It was contended for the defendants that, because the second action was brought before leave to bring a fresh action was given by the Appeal Court, the second action was bad. The District Judge held that the former action was not a bar, as the Appeal Court had given permission to bring a fresh action, though the permission was given after the institution of this case. Judgment having been entered for the plaintiff, the defendants appealed.

H. A. Jayewardene, for defendants-appellants.

Bawa, for the plaintiff-respondent.

17th October, 1905. LAYARD, C.J.-

The plaintiff in this case sought to be declared entitled to a certain land mentioned in the plaint. His title is founded on a purchase by one Sedu Tewar from a person named David Perera. Sedu Tewar after his purchase conveyed the land to plaintiff and one Minachchi.

On Minachchi's death the plaintiff inherited her share, and he alleges that the defendants are in unlawful possession of this land. It is unnecessary here for me to set out the defendant's claim to the land. The defendant however pleads that the plaintiff could not maintain this action because he had previously brought an action in the District Court of Kandy against them in respect of this very land, the subject of this suit. In that action the plaintiff claimed to have inherited the land from Sedu Tewar. He admits that at the time of bringing the action he was aware of the conveyance to himself and Minachchi, but that he could not find the deed, and so in the original action he only claimed by inheritance. The defendants contend that the decision in 14,893 dismissing plaintiff's action is res judicata.

At the date of the institution of the present action the decree dismissing the plaintiff's action in the former case was in force. There was an appeal, however, taken from that decision and this court in affirming the judgment in that action gave the plaintiff permission to bring a fresh action if so advised. The appellant contends that the judgment in 14,893 is res judicata, and that this court had no power to give plaintiff permission to bring a fresh action because the plaintiff had not withdrawn the previous action. It is unnecessary for the purpose of my decision to decide here whether the permission granted by this court in its judgment in the former case was one that this court had no power to grant. I would only state that if the plaintiff does bring a fresh action in accordance with the permission there granted he must do so at his own risk, leaving it open to the court in which the new action is brought to decide as

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