Singh v Wati [1994] FJHC 97; Haa0006j.1994b (18 August 1994)

IN THE HIGH COURT OF FIJI
APPELLATE JURISDICTION

CIVIL APPEAL NO.HAA0006J.94B

Between:

SOHAN SINGH
s/o Johra Singh
Plaintiff/Appellant

and

BIMLA WATI
d/o Raghubir Singh
Defendant/Respondent

Mr. Sen for Appellant
Mr. Kohli for Respondent

JUDGMENT

This is an appeal by the plaintiff/appellant in Labasa Civil Action No. 348/93 in which the learned trial Magistrate dismissed an action on a claim for $1870 said to be owing to the plaintiff/appellant as monies lent and advanced to Suresh Chand, deceased, of Bulileka, Labasa. The action was brought against Bimla Wati d/o Rabhubir as administratrix of the estate of the said Suresh Chand.

The learned trial Magistrate dismissed the action on the basis that the plea of res judicata applied and that the plaintiff/respondent was not entitled to a second bite at the cherry.

The plaintiff/appellant appeals to this Court on the ground that the learned Magistrate erred in law and fact in holding that the learned Magistrate was estopped from bringing the second action.

The first action, Labasa Civil Action No. 436/92 which was heard by Resident Magistrate Fernando was dismissed on the basis that the action against the then named defendant, namely Bimla Wati was misconceived. She was being sued in her personal capacity for a claim of monies allegedly due from Suresh Chand under certain promissory notes to the plaintiff/appellant. It was common ground that there was no basis in law or fact for such an action to be pursuant against Bimla Wati personally.

In the second action (No.348/93) Bimla Wati was sued as administratrix of the estate of Suresh Chand (deceased) and on the allegation that deceased had owed monies to plaintiff/ appellant under certain promissory notes. The action was heard by Resident Magistrate Shah who dismissed the action on the plea of res judicata. In coming to that view the learned Magistrate relied on a passage from Henderson v. Henderson [1843] EngR 917; [1843-60] All.ER Rep. 378 at pp.381,382 which was quoted in Public Trustee v. Kenward [1967] 2 All.ER. 870 at 873 and reads:

"........ where a given matter becomes the subject of litigation in and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

In my view the above citation was misapplied to the circumstances of the second action (No.348/93) which was quite different from that decided earlier in Labasa Civil Action No. 436/92. The parties in the two respective actions were not the same so that the plea of res judicata could not be said to apply. In the second action the plaintiff/appellant was suing the deceased's estate because the claim as was later formulated was against the deceased, Suresh Chand who allegedly owed monies under certain promissory notes to plaintiff/appellant. The earlier action against Bimla Wati had nothing in common with later action against the estate of Suresh Chand and obviously the parties were not the same which was a basic prerequisite for founding the plea of res judicata. Clearly it would be wrong as a matter of justice if plaintiff/appellant were denied his right to sue on his claim on a misconceived technicality.

For the reasons given I am satisfied this appeal should be allowed. The Ruling by the court below is set aside and the action instituted by plaintiff/appellant against the estate of Suresh Chand should be and is reinstated to be heard before another magistrate according to law. Costs to be in the cause.

Chief Justice

Suva
18 August, 1994

HAA0006J.94B