Annamalay Chetty V. Thronhill

1928 Present : Schneider and Lyall Grant JJ.

ANNAMALAY CHETTY v. THORNHILL.

168-D. C. (Inty.) Ratnapura, 4,687.

Res   judicata-Action for goods delivered-Failure to register under Business Names Ordinance-Institution of fresh action pending appeal-Merger of claim-Civil Procedure Code, ss. 34 and 406.

In action No. 4,122 of the Court the plaintiff sued the defendant to recover a sum of money upon a running account between them in respect of goods sold and delivered and money advanced.

The defendant pleaded that the plaintiff had not complied with the requirements of the Business Names Registration Ordinance, and that his action failed.

The plaintiff obtained judgment and the defendant appealed. While the appeal was pending, the plaintiff having conformed to the requirements of the Ordinance instituted the present action, in which the claim was founded upon the same transactions as in the previous action save for the addition of a cause of action based upon an account stated.

Held, that the plaintiff's claim was merged in the decree entered in the previous case, and that the decree barred the second action.

IN action No. 4,122 the plaintiff sued the defendant to recover a sum of Rs. 54,577.46 with further interest as balance due upon a running account between him and the defendant in respect of moneys advanced and goods sold and delivered between the month of August, 1923, and June, 1924.

The defendant while denying the correctness of the statement of claim pleaded inter alia that the plaintiff was precluded by the provisions of section 9 of the Business Names Registration Ordinance, No. 6 of 1918, from enforcing his rights under the contract.

After trial, judgment was entered in favour of the plaintiff on January 17, 1927, but the defendant appealed. During the pending of this appeal, the plaintiff having complied with the requirements of the Business Names Registration Ordinance instituted the present action on June, 2, 1927, the foundation of which was the same transaction as the previous action except for the addition of a cause of action based upon an account stated. The defendant contended that the action was barred by the decree entered in the previous action. Thereupon the learned District Judge dismissed the plaintiff's action.

Hayley, K.C. (with Gnanapragasam), for plaintiff, appellant.

In Roman-Dutch law the principle of res judicata is discussed in 4 Nathan, pp. 2157 and 2158.

Under the Indian Civil Procedure Code of 1908, section 10, and the older Code of 1892, section 12, it was held that the second action on the same cause of action cannot go on, neither section precludes the institution of a second action only the trial is precluded. See Nemaganda v. Paresha.1

The same principle has has been applied where letters of administration have not been stamped: a second action is allowed (Karunawardene v. Wijesuriya 2).
 
Similarly under the Business Names Ordinance, it is open to a party to bring a fresh action (Karuppen Chetty v. Harrison, Crosfield, Ltd.3). See Meheti v. Tulya.4

See 4 Maarsdorf 226, para 2.

Under section 207 of the Civil Procedure Code an order is not final if there is an appeal from it. In this case there has been no application for stay of action. (Sarkar 830.) Section. 13 of the Old Indian Code of Civil Procedure, 10 of the New Indian Code.

See Voet X. 1, 2; 3 Court of Appeal Cases 30; Hukm Chand 145. In Singh et al. v. Singh 5 Privy Council held that the appeal destroyed the finality of the decision (Spencer Bower, p. 100).

H. V. Perera, for defendant, respondent.?The cause of action in this case and the causes of action in the other case are the same: the non-payment of a debt. The promise to pay is not a further cause of action.

A promissory note extinguishes the liability on the bare debt (Palaniappa v. Saminathan 6).

The provisions of the Code against appellant are sections 406, 33, 34: the whol

Click Here to Read the rest of this document