Palaniappa Chetty V. Gomes

 

Present: Mr. Justice Wendt and Mr. Justice Wood Renton.

 

PALANIAPPA CHETTY v. GOMES et al.

 

D. C., Kalutara, 3,697.

 

    Res judicata-Dismissal of action for failure to give security for costs- Bar to fresh action-Civil Procedure Code, ss. 207, 417, and 418.

    Where a plaintiff is ordered, under section 417 of the Civil Procedure Code, to give security for costs, on the ground of the non-residence of the defendant within the jurisdiction of the Court, and he fails to do so, and his action is dismissed under section 418, the order of dismissal operates as res judicata, and bars a fresh action   on   the   same   cause   of   action.

 

Hariram   Mohanji   v.   Lalbai1   distinguished.

 

APPEAL by the first defendant from a judgment of the District Judge of Kalutara  (P. E. Pieris,   Esq.).    The   facts   and arguments sufficiently appear in the judgments.

 

Bawa, for the first defendant, appellant.

 

H. Jayewardene (with him C. de Jong), for the plaintiff, respondent.

Cur. adv. vult. 

  September 14, 1908.    WENDT J.-

 

This question in this case is whether the dismissal under section 418 of the Civil Procedure Code of a former action, on the failure of plaintiff to find the security ordered under section 417, is a bar to a second action for the same cause. The learned District Judge has held that it is not. The facts are as follows: -

 

Both actions are by the endorsee against the maker and endorser of the same promissory note. In the former action, which was brought in the District Court of Colombo, the first defendant, who was resident in Kalutara, before answering obtained an order directing the plaintiff to deposit Rs. 250 as security for his costs on or before June 26, 1907. The period was subsequently extended to July 10, but the deposit not having been made the action was on that day dismissed with costs. No application was made for leave to withdraw from the action, nor did plaintiff apply for an order to set the dismissal aside. On January 29, 1908, the present action was commenced. In his answer, besides pleas on the merits, the first defendant pleaded that the dismissal of the Colombo action was a bar to the present action, and this was tried as a preliminary issue. The District Judge held, following Hariram Mohanji v. Lalbai,1 that the dismissal was not a bar, and first defendant has appealed.

1(1902) I. L. R. 26 Bom. 637.

 

Our law as to res judicata is to be found in section 207 of the  Civil Procedure Code, which enacts that " all decrees passed by the   Court shall, subject to appeal,  when an appeal is allowed, be final  between the parties; and no plaintiff shall hereafter be non-suited." To this section is appended the following " explanation " : -

 

" Every right of property, or to money, or to damages, or 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."

 

" Decree " is defined in section 5 on " the formal expression of an adjudication upon any right claimed or defence set up in a Civil Court, when such adjudication, so far as regards the Court expressing it, decides the action or appeal." The dismissal of the Colombo case involved the adjudication that plaintiff could not maintain his action. It was therefore a decree, and a final decree, because so long as it remained in force nothing more could be done in the action. When it was passed, the right to recover the promissory note debt, which plaintiff had set up in that action, became a res judicata, and could not be litigated in a new action between the same parties.

 

The

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