Annamaly Chetty V. Thornhill

1932 Present : Garvin S.P.J. and Dalton J.

ANNAMALY CHETTY v. THORNHILL.

42-D. C. Ratnapura, 4,687.

Res judicata-Dismissal of action for failure to register plaintiff's business name-Subsequent action on same subject matter-Finality of decrees-Civil Procedure Code, s. 207.

The plaintiff brought action No. 4,122 in the District Court of Ratnapura to recover money due to him for rice and cash supplied. The defendant denied liability and further pleaded that the plaintiff could not maintain his action as he had failed to register his business name. " On January 17, 1927, the District Court entered judgment in favour of the plaintiff. The defendant appealed and the Supreme Court allowed the appeal and dismissed the plaintiff's action on the ground that he had failed to comply with the requirements of the Business Names Registration Ordinance, No. 6 of 1918.

Whilst the appeal was pending, plaintiff instituted the present action on June 2, 1927, upon the same cause of action. The District Court dismissed this action on the ground that it was barred by action No. 4,122.

This judgment was affirmed by the Supreme Court on March 13, 1928. On an appeal by the plaintiff to the Privy Council, the judgment of the Supreme Court was set aside and the case remitted to the District Court to be tried upon the merits.

Held, that the decree passed in case No. 4,122 was not a decree made in exercise of the Court's jurisdiction over the subject matter of the action but was only a declaration that a condition of its exercise had not been complied with by the plaintiff, as a result of which it was not able to exercise its jurisdiction over the action and its subject matter.

It was therefore not a final decree in the action within the meaning of section 207 of the Civil Procedure Code and did not operate as a bar to the present action.

Held further, that the order of the Privy Council remitting the case to be tried upon the merits cannot be construed as a direction that no objection in point of law to the maintenance of this action whether on the ground of res judicata or any other ground was to be excluded from consideration.

APPEAL from an order of the District Judge of Ratnapura holding that this action was not barred by dismissal of plaintiff's action No, 4,122 in the same Court against the defendant on the same cause of action.

The facts upon which the plea of res judicata was founded are fully stated in the headnote.

H. V. Perera, for defendant, appellant.-The cause of action is complete and is the same in both cases. Section 207 of the Code abolished the non-suiting of a plaintiff's action and every right of the plaintiff is made res judicata. Even when there is no adjudication on the merits, section 207 makes the matter res judicata although under the law a fresh action would not have been barred. The cause of action, however, must have existed at the time: The test of res judicata is whether a definite decision has been pronounced. The old difference between non-suit and res judicata was necessary owing to the very rigid rules of pleading. Now, however, section 406 gives a plaintiff the right to ask leave to withdraw and bring a fresh action if there is any formal defect in his action. If he does not choose to do so, he must suffer the consequences. The principle of our Code is one action on one cause of action. But there is no distinction between cases where the cause of action is complete at the institution of the first action and those in which the cause of action does not yet exist.

N. E. Weerasooria (with him Gratiaen), for plaintiff, respondent.-The Privy Council directed that the case should be heard on the merits. The plea of res judicata cannot, therefore be raised. Vide order of His Majesty in Council in pursuance of the judgment. The order must be read in the context in which it was made. The Privy Council had both judgments of the Suprem

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