Baban Appu V. Gunewardene Et Al.

Present : Sir Joseph T. Hutchinson, Chief Justice, and
Mr. Justice Wendt. 1907  March 13.

BABAN APPU v. GUNEWARDENE et al.

D. C, Galle, 8,159.

Res judicata-Dismissal of action-Setting up same claim on different ground-Civil Procedure Code, s. 207.

    A party who has failed in one action cannot afterwards set up the same claim in another action between the same parties, and support it on grounds which might have been put forward in the first action.

    Section 207 of the ' Civil Procedure Code makes a judgment conclusive, not only as to matters actually pleaded, put in issue, and tried and decided, but also as to matters which might, and (according to the rules of the Code) ought to, have been pleaded, tried, and decided.

APPEAL by the first and second defendants from a judgment of appeal the District Judge of Galle (G. A. Baumgartner, Esq.).

    The facts and arguments are fully stated in the judgments.

    Bawa, for the first and second defendants, appellants.

    A. St. V. Jayewardene, for the plaintiff, respondent.

Cur. adv. vult.

    March 13, 1907. HUTCHISON C.J-

    The plaintiff claims a declaration of his title to a piece of land. The first and second defendants denied his title, and also, among Other pleas, said that the plaintiff's claim was barred by the decree of the District Court of Galle made on the 21st August, 1903, in a former action between the same parties. In that former action,

No. 7,013, the present first defendant sued the present plaintiff for a declaration of his title to this same land, and by its decree the Court declared that the present first defendant was entitled to the land, and ordered the present plaintiff to be ejected therefrom. The second defendant claims by purchase from the first defendant since the date of that decree.

    The plaintiff suggested six issues; the first and second defendants agreed to those issues, but suggested some others, one of which was whether the decree in action No. 7,013, D. C, Galle, is a bar to the plaintiff's present claim. The record does not state that the plaintiff agreed to the issues proposed by these defendants, or that the Court accepted them. But on the 28th November, 1906, when the case was called in, it is recorded that these defendants raised the preliminary objection that plaintiff is barred by the decree in D. C, 7,013; arguments were heard on that objection, the plaintiff alleging that in that action he was not represented by any legal adviser, and that no issue whether he had obtained a title by prescription was gone into, and that the decree was made per incuriam. The plaintiff in fact wished to set up in this action a claim that he was entitled to the land by prescription?a claim which he might have set up in the previous action.

    The Court after hearing the arguments fixed the case for trial on the other issues, without giving any opinion on the preliminary objection. Next day the defendants' proctor applied to the Court for a ruling forthwith on the issue which had been argued the day before, quoting in support of his application section 147 of the Civil Procedure Code. The Judge after hearing both parties took time to consider the application, and on the 28th December, 1906, he refused it. The first two defendants now appeal against that refusal.

    The appellants rely on section 207 of the Civil Procedure Code and the explanation appended to that section, which is that " every right to relief of any kind which can be claimed, set up, or put in issue between the parties to an action upon the cause of action for which the action is brought, whether it be actually so claimed, set up, or put in issue or not in the action, becomes, on the passing of the final decree in the action a res adjudicata, which cannot afterwards be made the subject of action for the same cause between the same parties. " The right to this land was claimed in the forme

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