Soothiratnam Et Al., V. Annamma

1954 Present : Gratiaen, J., and Gunasekara, J.

SOOTHIRATNAM (widow of V. Velupillai) et al., Appellants, and
ANNAMMA (widow of Amirthalingam), Respondent

S. C. 403-D. C. Jaffna, 4,900/L

Abatement of action-Actio rei vindicatio-Transfer of subject-matter by plaintiff pending action-Effect of abatement order on separate action instituted by plaintiff's transferee-Civil Procedure Code, ss. 396 403, 404-Registration of Documents Ordinance, s. 11 (1) and (3).

Section 403 of the Civil Procedure Code, which prohibits a fresh action being brought when an action has abated, directly affects only those persons who, while they are precluded from instituting separate proceedings on the same cause of action, nevertheless enjoy the alternative remedy of having the order of abatement vacated in order that the original action may be proceeded with.

A instituted against B an action for the recovery of certain property. The lis pendens was not registered. During the pendency of the action, A transferred the property in dispute to C. Subsequently A died, and, as his legal representatives took no steps to continue the proceedings, an order of abatement was made by Court under section 396 of the Civil Procedure Code. Before A's action had abated, C had instituted the present action in his own right to have the same defendant, B, ejected from the premises.

Held, that the provisions of section 403 of the Civil Procedure Code did not prevent the maintenance of the present action.

APPEAL from a judgment of the District Court, Jaffna.

G. Ranganathan, for the plaintiffs appellants.

H. W. Tambiah, for the defendant respondent.

Cur. adv. vult.

January 21, 1954. GRATIAEN, J.-

On 23rd March 1946 the appellant obtained from Velupillai Vinasithamby for valuable consideration a notarial lease of the property in dispute for a period of ten years commencing on 1st April 1946. He was unable to obtain vacant possession of the leased premises, and on 8th October 1948 he filed this action alleging that the defendant was a trespasser on the premises, and prayed inter alia for a decree of ejectment against him. That such a remedy is prima facie available to a lessee of immovable property by virtue of the pro tanto alienation in his favour is not disputed.

The defendant denied that he was a trespasser, and claimed to be the owner of the property by virtue of a title superior to that of the appellant's lessor Vinasithamby. A number of issues were framed at the commencement of the trial, but, after some evidence had been led, certain additional issues were raised which, in the submission of the defendant's counsel, went to the root of the action. The learned Judge agreed to adjudicate upon these additional issues in the first instance, and after hearing argument upheld the defendant's plea that the appellant was precluded from maintaining the action by reason of certain admitted facts which I shall now proceed to examine.

It was established by the evidence that, before the execution of the lease in favour of the appellant, his lessor Vinasithamby had himself instituted a rei vindicatio action on 16th October 1944 against the defendant for the recovery of the property in dispute. Before the trial was concluded, however, Vinasithamby died, and, as his legal representatives took no steps thereafter to continue the proceedings, an order of abatement was duly made by the trial Judge on 15th October 1948 in terms of section 396 of the Civil Procedure Code. It will be observed that, before the date of this order, the appellant had already instituted the present action in his own right to have the defendant ejected from the premises. Nevertheless, the learned Judge upheld the plea that the subsequent order of abatement made in the action filed by Vinasithamby was binding on the appellant and had the effect of precluding him from pursuing his independent remedy against the defenda

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