Nagalingam V. Ledchumipillai

1953 Present: Pulle J. and Weerasooriya J.

NAGALINGAM, Appellant, and LEDCHUMIPILLAI, Respondent

S. C. 77-D. C. (Inty.) Anuradhapura, 3,313
 

Appeal-Dismissal for want of appearance-Effect of such dismissal-Res judicata- Extension of principle to points decided previously in same suit-Arbitration- Objections to validity of award-Same objection cannot be raised twice-Civil Procedure Code, ss. 687, 692 (1).

When an appeal is dismissed, there being no appearance for the appellant, the dismissal of the appeal must be regarded as involving a rejection of all the arguments which might have been raised at the hearing of the appeal. The absent party must bear the consequence of his own laches.

A decision in a civil suit or other proceeding in regard to any point operates as a bar to a fresh decision on that point in all subsequent stages of that suit or proceeding. In arbitration proceedings, therefore, the requirement in section 692 (1) of the Civil Procedure Code that the parties should be notified of the day on which judgment will be given does not entitle a party to raise on the day fixed for judgment an objection to an award which he had previously raised and was the subject of an adjudication which is binding on him.

APPEAL from a judgment of the District Court, Anuradhapura.

C. E. S. Perera, Q. C., with C. Shanmuganayagam, for the defendant appellant.

S. J. Kadirgamar, with S. T. K. Mahadeva, for the plaintiff respondent.

Cur. adv. vult.

 November 30, 1953. WEERASOORIYA J.-

During the pendency of this action, which was brought by the plaintiff-respondent against the defendant-appellant, the matters in dispute were by consent of the parties referred to arbitration, purportedly under

the provisions of sections 676-678 of the Civil Procedure Code. The award of the arbitrators holding that the plaintiff-respondent was entitled to a sum representing the major portion of the amount claimed by her in the plaint was in due course filed in Court and notice thereof was given to the defendant-appellant on the 18th April, 1952 ; and on the 8th May, 1952, he filed an application containing certain objections to the award and praying inter alia that the award be set aside and that the case be fixed for trial before the Court. The inquiry into this application was held on the 12th June, 1952, when Counsel for the plaintiff-respondent took the objection that the application to set aside the award had not been made within the time specified in s. 687 of the Civil Procedure Code. Counsel for the defendant appellant, while not contending that the application had been made within time, raised an entirely new objection on the ground that the award was a nullity in that " the reference to arbitration is illegal" and he also moved to amend the objections already filed by adding this new ground. Mr. Perera, who appeared for the defendant-appellant at the hearing of the present appeal, amplified this new ground of objection by stating that the application to Court for an order of reference to arbitration was not in writing, as required by s. 676 (2) of the Civil Procedure Code, and that the consequent arbitration proceedings as well as the award were void and of no effect in law, and he submitted further that an objection to an award on the ground that it was void need not be taken within the time specified in s. 687 of the Civil Procedure Code.

The learned District Judge refused to entertain the new ground of objection or to grant leave to amend the objections by the addition of that ground, and he dismissed the defendant-appellant's application to set aside the award, holding that the application had not been made within time.

The legal position that resulted from the dismissal of this application was that there was before Court an award according to which the Court was required under s. 692 (1) of the Civil Procedure Code to give judgment after notice to the

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