1936 Present : Moseley J. and Fernando A.J.

AMEEN v. PATIMUTTU.

49 & 50-D. C. Colombo, 309.

Res adjudicata-Action by plaintiff for accounting of rents collected by defendant as manager-Defendant's denial of his capacity as manager-Action dismissed of consent-Subsequent action for declaration of title-Plea of res adjudicata-How far it is valid in a decree of dismissal-Civil Procedure Code, s. 207.

In D. C. Colombo, No. 29, the plaintiff sued her husband, the defendant, asking for an account of the rents received by the defendant as her manager from the properties in question and for a declaration that she was entitled to certain premises which had been purchased by the defendant out of the rents collected by him.

The defendant in his answer denied that he collected the rents as manager of the plaintiff. He further alleged that it was agreed that the defendant should take the rents for himself and that the rents were in fact applied to the maintenance and support of the plaintiff and her children.

The action was dismissed of consent, the plaintiff and defendant having settled their differences. The plaintiff brought the present actions in which she asked for declaration of title to the same properties and for damages for wrongful possession.

Held, that the actions were not barred by the decree of dismissal entered in the previous action.

Where an action is dismissed of consent, the decree of dismissal can operate as res adjudicate only where there is no legitimate doubt as to the issues which were involved in the decision on the facts which have been expressly or impliedly decided thereby.

IN these actions the plaintiff sued her husband for declaration of title to certain premises for damages, for wrongful possession, and for ejectment. The actions were tried together. The defendant inter alia pleaded that he had effected certain improvements to the premises and claimed compensation for them. He further pleaded that the order made in D. C. Colombo No. 26 was a bar to these actions. In the latter case plaintiff had asked for an account of the rents recovered by the defendant as her manager from the properties in question and for a declaration that she was entitled to certain premises which the defendant had bought out of the rents collected by him. The action was dismissed of consent, the parties having settled their differences. The learned District Judge hold that the decree of dismissal was not res adjudicata.

H. V. Perera (with him N. E. Weerasooria, L, A. Rajapakse, E. F. N. Gratiaen, and J. A. T. Perera), for defendant, appellant.-A consent decree operates as res judicata. (Dingiri Menike v. Punchi Mahatmaya [1 13 N. L. R. 59. ]; Sinniah v. Elliakutty [2 34 N. L. R. 37.]) One must look at the pleadings to find out the point in issue. The right claimed by the defendant in this case is the same right claimed in the previous case, i.e., the right to collect the rents. The dismissal of the plaintiff's action is a bar to the denial of that claim. The fact that the earlier action was between husband and wife does not affect the question of res judicata. As long as the decree is not set aside it is res judicata (18 N. L. R. 510). Res judicata operates not merely with regard to the subject-matter of the action but the grounds on which a person asks for relief. The grounds of settlement can be inferred. The expression "cause of action" is used in section 207 of the Code in the wider sense, i.e., the grounds on which the plaintiff asks for relief. No distinction is drawn between a decree of consent and without trial and a decree after trial. The section says "same cause", not "same cause of action". The former word has a wider significance (16 N. L. R. 257). Pereira J's. view has been adopted in later cases (Loku Banda v. Piyadassa [ 4C. W R. 155.]). This is in accordance with the general principles of res judicata. (Hukum Chand, p. 10, article 9.) Th