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NADARAJAH v. PATHTHAKUDDY
NLR53V273
1951 Present: Gratiaen
J. and Pulle J.
NADARAJAH, Appellant, and PATHTHAKUDDY, Respondent
S. C. 139 Inty.-D. C. Trincomalee, 3,387
Res judicata-Claim and
counter-claim-Compromise-Right of defendant to bring fresh action in respect of
the counter-claim-Civil Procedure Code, ss 207, 408.
Where, in an action, a counter-claim made by the defendant is in substantial
issue but, subsequently, a judgment by consent is entered in full satisfaction
of the claim and without any reservation of the defendant's right to bring a
separate action in respect of the counter-claim, the defendant is precluded from
bringing a second action in respect of the counter-claim. If he does so, the
consent decree in the previous action will operate as res judicata.
APPEAL
from an order of the District Court,
Trincomalee.
H. W. Tambiah, with G. F. Sethukavalar, for the defendant appellant.
E. R. S. R. Coomaraswamy, for the plaintiff respondent.
Cur. adv. vult.
May 30, 1951. PULLE J.-
The plaintiff in this action alleged that the defendant cultivated a paddy field
in the year 1945 undertaking to deliver ten amunams of paddy. It was also
alleged that the defendant cultivated the same field in 1946 and became liable
to deliver ten amunams of paddy in that year as well. In the result the
plaintiff claimed to be paid Rs. 2,000 being the value of twenty amunams at the
rate of Rs. 100 per amunam. Various defences were raised by the defendant of
which one was that the decree in an earlier case between the same parties,
namely, D. C, Trincomalee, Case No. 3,224, operated as res Judicata. This plea
was taken up as a preliminary issue and was decided against the defendant.
In Case No. 3,224 the defendant in the present action sued the plaintiff on a
mortgage bond dated 2nd November, 1939, for the recovery of a sum of Rs. 1,509
and interest and prayed that the land mortgaged be decreed bound and executable.
As against this claim the plaintiff pleaded that he had paid a sum of Rs. 500 in
part settlement of the amount due on the bond and further alleged that the
defendant had the use and occupation of the field in question during the years
1945 and 1946 promising to deliver to the plaintiff ten amunams of paddy per
year as ground share. The defence then was that as against the claim on the bond
the plaintiff was entitled to credit to the extent of Rs. 500 paid in cash and
the value of twenty amunams of paddy at Rs. 100 per amunam. The present
plaintiff's prayer in that case was that an account be taken of the transactions
between the parties to the bond and that the defendant be'' adjudged and decreed
to pay such sum of money as may be found due to him on such accounting ". In
substance the plaintiff's defence to the
action on the mortgage bond was
that the claim arising on it had been paid and settled and that, if on an
accounting, a sum was found due to him, a decree in his favour for that sum
should be entered.
To decide the plea of res judicata it is necessary to read the issues which were
framed at the trial in Case No. 3,224. They are as follows :-
(1) What sum is due to the plaintiff on the bond sued upon
(2) Did the plaintiff cultivate the defendant's field of nine acres in 1945 and
1946 ?
(3)If so what is a reasonable rental for that field ?
The defendant gave evidence stating that the plaintiff had borrowed Rs. 1,000 on
the 2nd November, 1939, agreeing to pay interest at 12 per cent. He admitted
having received Rs. 200 in 1941 and Rs. 300 in 1942 on account of principal and
interest. He claimed Rs. 820 as principal and Rs. 689 as interest making a total
of Rs. 1,509. At this point of the evidence the case was settled and the
settlement was recorded in the following terms :-
" Of consent judgment for plaintiff for Rs. 1,500 in full satisfaction of the
claim. No costs. Order to sell not to issue for two years from to-day ".
The learned District Judge rejected the proposi
