Principles

·  CIVIL PROCEDURE — Re: judicata — Civil Justice Ordinance 1929, s. 40 — Matter, which “might and ought” to have been pleaded informer suit is one which was “directiy and substantially in issue.”

Where the purchaser of a car sued to rescind the contract of sale for failure of consideration due to the seller’s inability to perfect his title through registration, and this inability could have been pleaded by the purchaser as defence to a previous action by the seller for the purchase price, it was a matter which “might and ought” to have been made a ground of defence in the former suit and was therefore res Judicata as a matter” irectly and substantially in issue” under Civil Justice Ordinance 1929, s. 40.

Judgment

 Advocates: Abdalla El Hassan ……………………for applicant

Hussein Osman Wanni ………………………….for respondent

Babiker Awadalla, J., February 12, 1958:— This is an application against the order of the Honourable Judge of the High Court, Khartoum, dated September 26, 1957, ordering the retrial of CS-159-1955, instituted before the learned District Judge by respondent on April 30, 1955. In that suit, by plaint dated April 30, 1955, the plaintiff-respondent claimed from defendant-applicant a sum of £S.350 on a total failure of consideration. The amount represented part payment of the purchase price of a Vanguard car, property of applicant, and sold by him to respondent in or about 1953, and the registration of which in the respondent’s name could not, for the reason to be presently disclosed, be carried out. It appears from the plaint that plaintiff applied for the transfer of the car to his name, but it was discovered that it was registered in the name of Buildmore, the original assignors, under a hire purchase agreement. Messrs Buildmore, it is alleged, refused to co-operate in the registration of the car to plaintiff because of an alleged lien they had on it in respect of repairs.

In answer to the plaint, applicant, who appeared in person, admitted, the agreement and receipt of £S.270 or £S.280 in part payment, but denied liability for the non-registration of the car in the respondent’s name and alleged that the whole case was the subject of a previous civil suit between the same parties in 1953.

Court: M. I. El Nur, J. and Babiker Awadalla, J.

Advocate for respondent applied for adjournment for fifteen days to peruse the suit referred to by applicant, and the case was ordered to be brought forward on the July 2, 1955. On that date he appeared to report to the Honourable Judge of the High Court that he was unable to trace the civil suit in question. There was no appearance on behalf of applicant but nonetheless it was contended by the learned advocate for the respondent that the plea of res judicata ought to have been pursued and proved by applicant, and as the latter failed to appear, he applied for and with facility obtained judgment in default.

About a month later. applicant applied through advocate Abdalla El Hassan for the default decree to be set aside on the ground that his client was under a misapprehension  as to the question of proof of the plea of res judicata, and although this application was first considered by the Honour- able Judge of the High Court, who ordered that the parties be summoned for October 30, 1955, the question of re-opening was disposed of by the District Judge without any authority for that purpose by the Honourable Judge of the High Court. The District Judge allowed the application, subject to payment into Court of the value of the decree within 15 days. The decretal amount was paid into Court of November 13, 1955 and on November 28, 1955 advocate Abdalla El Hassan applied for the case to be considered and the case seems again to have gone to the High Court and date fixed for December 11, 1955; and on that date, due apparently to the fact that the decree-holder was not served with summons, the case was adjourned sine die. More than a year later, i.e., on February 6, 1956, advocate Wanni applied to proceed with the case and hearing was fixed for March 10, 1956. On that date, the case once more came before the District Judge, who allowed an application by defendant - applicant’s advocate for pleadings. No statement of claim was filed consequent on this order, but defendant’s advocate submitted a statement of defence on March 7, 1956 , and two days later the ‘District Judge ordered this defence to be struck off as contrary to the Civil Justice Ordinance, Order II, r. 4. From this order, the defendant’s advocate applied for revision to the Honourable Judge of the High Court, and on April 9, 1956 the Honourable Judge of the Court allowed the application and then proceeded to direct the District Judge as to the issues to be framed in the case. The District Judge proceeded to hear the case and on March 11, 1957 gave judgment dismissing the claim with costs on the ground that even though the defendant failed to register the car in plaintiff’s name, yet that of itself is not evidence of absence of title. The plaintiff applied to the Honourable Judge of the High Court who over-ruled the learned District Judge on ‘t.he question of title, that such title could only be perfected by registration, and that there ought to be inferred in the contract an implied condition to that effect, failure of which entitled the buyer to rescind the contract if the car was not used, and, if it were, to damages. He consequently ordered that case be referred back to the learned District Judge for retrial.

in his application to this court for revision of the order of the Honourable  Judge of the High Court, the learned counsel for applicant submits that the Honourabte Judge of the High Court was wrong in law in finding, inter alia, that the plaintiff is entitled to damages when the original claim was one for rescission of the contract. Neither counsel was asked before this court to argue in favour of or ag the points raised in this application because a perusal of the record disclosed that although the question of res judicata was mentioned in the early stages of the case, it was never seriously pursued by the defendant, nor considered either by the District Judge or the High Court on revision. The court had before it the record of CS-96- 1952, which was instituted by the applicant against the respondent for a sum of 180 being the balance price of the car.

In that case, the defendant respondent counterclaimed for refund of the money paid, contending that the agreement of sale was subject to the conditions that the car must be in good running order, registered, licensed and insured, and that as plaintiff failed to comply with those conditions, the contract was at an end, and that he was entitled to the return of his money. The case was duly heard and a consent decree was issued on January 28, 1953, by which the counterclaim was dismissed, and defendant ordered to pay the balance price. In the hearing of that case, a representation from Messrs Buildmore Co. gave evidence

The first question that in our view calls for a careful consideration is whether this action is barred under the Civil Justice Ordinance 1929, s. 40, and whether the direction of the Honourable Judge of the High Court for a retrial after issue as to title is correct.

Civil ‘Jstice Ordinance 1929, s. 40 prevents a trial of an issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former. suit between the same parties or between parties under whom they or any of them claim litigating under the same title.

Explanation 1 to this section says that any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

The purpose of this last-quoted explanation is to prevent a party, after having tried to establish his claim by one means and failed, from seeking to establish that claim by othe means which were equally at his command when the former suit was tried and which is so connected with the ground on which in the previous case he relied that they ought to have been submitted for consideration together. It applies equally to a defendant when he has several defences to make but sets up only one of such defences and keeps back others with a similar object. The defence not put forward and kept back shall by fiction of law be deemed to have been a matter directly and substantially in issue in the former suit.

In his application to the High Court for revision, the learned counsel for the respondent quoted Road Traffic Ordinance 1942, s. 12 concerning registration after change of ownership, and tried to establish that there is an implied condition that the car must be the, property of the defendant. In our view, that is a point against the learned counsel, for that Section requires an application for change of ownership to be made within fourteen days

from the date of actual change of ownership, and as the first suit was in stituted more than three months after the contract of sale, the point is worth considering whether it was within the respondent’s competence, or at least should be deemed to have been within his competence, to pursue his allegation in the first suit, that the plaintiff failed to perfect the title through registration. In other words, it is a point which “might and ought” to have been a ground of defence or attack in the former suit.

We are therefore of opinion that the question to be first considered in the retrial is not whether there was a breach of an implied condition, but whether this claim is or is not barred under the Civil Justice Ordinance,

s.40. To that extent, therefore, we are of opinion that the direction for retrial was wrong and that this application must be allowed with costs.

M. I. El Nur, J., February 12, 1958---------- I concur.