Present : Mr. Justice Grenier.

HOLLOWAY et al. v. PERERA.

C. R., Panwila, 2,301.

Action for rent and ejectment-Subsequent action for rent accruing after the date of the first action-Res judicata-Civil Procedure Code, ss. 34 and- 35.

Plaintiff obtained judgment against defendant for rent due up to date of action and for ejectment. Subsequently, after plaintiff was put in possession, be brought the present action for the rent that accrued between the institution of the first action and the present action.

Held, over-ruling a plea of ret judicata, that the present action was maintainable.

THE facts are fully set out in the judgment of Grenier J.

A. St. V. Jayewardene, for the defendant, appellant.-Plaintiff could have claimed rent till he was restored to possession in the first action. He elected not to do so. Section 196 of the Civil Procedure Code gives the Court power to decree the payment of rent from the date of the institution of the action until delivery of possession. But the Court has not done so. Under these circumstances the present action cannot be maintained (Kiri Banda v. Slema Lebbe,[1 (1908) 11 N. L. R. 348. ] Kirihamy v. Dingiri Amma [2 (1905) 1 Bal. 146.]).

H. A. Jayewardene, for the plaintiff, respondent.-Under section 35 of the Civil Procedure Code the plaintiff could not include in his plaint in the first action a claim for future rent. Section 196 merely gives the Court the power to decree future rent; but it does not enable the plaintiff to claim future rent as a matter of right. Counsel

cited Sirkar v. The Secretary of State for India in Council;1 May 30,1910 Hays v. Padmanand Singh; 2 Dayal v. Lai; 3 Bhivrav v. Sitaram; 4 Holloway D. C, Galle, 6,340.5 The present case can be distinguished from v. Perera the Ceylon cases cited by the appellant's counsel. In those cases there was a prayer for damages accruing after the institution of the action.

A. St. V. Jayewardene, in reply.

Cur. adv. vult.

May 30, 1910. GRENIER J.-

The defendant was the tenant of the plaintiff of certain boutiques on a monthly rental of Rs. 5. Plaintiff obtained judgment against defendant in C. E., Panwila, 2,032, for the sum of Rs. 54.20, being rent due to the end of January, 1908, and also obtained an order for ejectment of the defendant from the premises. On May 22, 1909, the plaintiff was put in possession of the premises, the defendant having remained in possession up to that date.

The defendant admitted the tenancy averred in the 2nd paragraph of the plaint, but denied his liability to pay the amount claimed, on the ground that he was not the tenant of the plaintiff, and was . not in occupation of the premises during the period between February 1, 1908, and May 22, 1909. He denied he was ejected from the premises by the Fiscal, but this was an unnecessary denial, as the plaintiff never averred any ejectment in his plaint. The defendant averred that he was not aware that plaintiff had been put in possession of the premises.

Following on the above statements and denial came this extraordinary defence, raised as a matter of law, that the amount claimed, which, according to defendant, was not due, and for which he had never made himself liable, should have been included and formed part of the plaintiff's claim in action No. 2,032, and that having omitted to do so, the plaintiff cannot have and maintain this action. At the trial two issues were framed, the first relating to defendant's tenancy from February 1, 1908, to May 1, 1909, and the other relating to the question of law.

The defendant gave no evidence. On behalf of the plaintiff his son was called, as he was in charge of the boutique tenanted by the defendant. He stated that defendant paid rent up to March, 1907, and the action No. 2,032 was instituted to recover rent from April 1, 1907, to end of 1908. Judgment was entered for plaintiff in that case for rent up to end of January, 1909.