Lal and Co v Bhaijee (C.A. 10/1932.) [1932] EACA 6 (1 January 1932)

## COURT OF APPEAL FOR EASTERN AFRICA.

## Before SIR JACOB BARTH, C. J. (Kenya), JOHNSON, Acting C. J. (Zanzibar), and Law, Acting C. J. (Uganda).

CHURANJI LAL & CO. (Appellants) (Original Defendants)

## F. M. BHAIJEE (Respondent) (Original Plaintiff) C. A. $10/1932$ .

Indian Contract Act, Section 70—Compensation for nongratuitous act-User-Mutual party wall-Civil Procedure Ordinance, section 7-Res judicata-Indian Limitation Act —Commencement of limitation.

$Held(2-7-32) := (1)$ That defence of res judicata cannot be sustained when the facts on which the party is relying were not in existence at the time of the former suit.

(2) That limitation begins to run from the commencement of user.

Mangat for Appellants.

Schwartze for Respondent.

Mangat submitted that this appeal had already been the subject of judicial determination and fell within the provisions of explanation 4 of section 7 of the Civil Procedure Ordinance. The appellants in this case had already been parties in a previous appeal and the subject was res judicata. Referred to:-

Chowdhry v. Dossee, 2 Cal. 152.

Article 61, Limitation. Act.

Pillai v. Avayambal, 34 Madras 167.

Maharaj v. Maharaj, 19 Allahabad 244.

Schwartze referred to preliminary negotiations as to estimated cost. In September, 1930, appellants said they had not used the wall. Limitation can only run after cause of action arises. Cf. Article 120, Limitation Act.

Mangat replied, commenting that the wall was built with the knowledge and consent of the appellants according to the plaint and on the understanding that it was for mutual use.

SIR JACOB BARTH, C. J.—This is an appeal from a judgment of Gamble, Ag. J., of the Supreme Court of Kenya.

The respondent, the original plaintiff, built a party wall between two godown plots in Nairobi owned respectively by each party. He endeavoured to recover half the cost under an alleged agreement between the parties. This suit come before this Court

on Appeal and the present respondent failed on the ground that the alleged agreement was in fact not a concluded agreement because there were terms left to be settled by a firm of lawyers (vide Civil Appeal No. 28 of 1930).

In the suit now before us the respondent, relying on section 70 of the Contract Act, sought to recover half the cost of the wall on the ground that the appellant had enjoyed the benefit of it from or about December, 1930, when the appellant built, using their side of the party wall.

There are two main grounds of appeal: (1) that the claim is res judicata, and (2) that the suit is barred by limitation.

Section 7 of the Civil Procedure Ordinance, 1924, deals with res judicata. At the time of the first suit the appellant was not using the wall and did, in fact, derive no direct benefit from it. The case therefore does not in my view come within section $7.$ It is not a matter which could have been made a ground of attack in the former suit and was therefore not a matter which can be deemed to have been in issue in such suit.

The question of limitation can also be dismissed because the appellant did not begin to enjoy the benefit of the wall until within three years of the present date.

With reference to the cost I see no reason to differ from the finding of the learned trial Judge.

The appeal should in my judgment be dismissed with costs.

Law, Ag. C. J.—In this appeal the judgment of the lower Court is attacked on two legal points, namely, that the respondent's claim was (a) res judicata, and (b), barred by limitation. It is observed from the proceedings that, by consent of counsel, it was agreed that the appellants had the "user" of the party wall in question only from December, 1930. It is not understood how appellants can be said to have received any benefit therefrom before that date. The respondent's present action is clearly based on section 70 of the Indian Contract Act, and is a claim to be compensated for an act lawfully and not gratuitously done of which the appellants have enjoyed the benefit.

The action was filed on the 9th February, 1932, and it is claimed to be res judicata by reason of the fact that the relief sought therein could have been, but was not, made a ground for relief in the previous action (Civil Case No. 28 of 1930) by respondent against the appellants, which was filed on the 15th February, 1930. An examination of that former case, however, reveals that the relief therein claimed was based on an agreement alleged to have been entered into between the parties, that respondent and appellants should each bear half the cost of the erection of the wall. Judgment was given for respondent, but on appeal it was set aside on the grounds that the agreement was incomplete and unenforceable. It is significant to note from the judgment of Sir Charles Griffin, one of the members of the Court of Appeal on that occasion, that appellants admitted they must pay half the cost of the erection of the wall.

Shortly, the claim in the former case was based on an alleged agreement, dated 31st March, 1928; the present action is based on a rule of law arising out of circumstances which actually came into existence only in December, 1930. In my view the grounds for the present action could not be said to have existed on the 15th February, 1930, when the former action was filed. In the circumstances, therefore, I find that the present claim is not res judicata.

It is argued on behalf of appellants that the wall was actually completed in January, 1929, from which date the appellants' contribution to its cost became payable, and, therefore, by virtue of Article 61 of the Limitation Act, as the present claim was not instituted till February, 1932, it is now time barred. With this contention I cannot agree. In my view the contribution became payable only when the appellants began to enjoy the benefit of the wall, which was in December, 1930. The present action was filed a little more than two years later. In the circumstances, therefore, the claim is not time barred.

With regard to appellants' allegation that there has not been any demand by respondent for payment I attach little importance. They previously expressed willingness to pay their share. Besides, the former action in respect of contribution in February, 1930, was in itself a formal demand for payment.

There is one further matter for consideration, namely, whether the learned trial Judge was justified in fixing appellants' contribution at Sh. $4,805/86$ . In such matters as this it is difficult to arrive at an exact figure, especially where the differing opinions of three experts had to be considered. I am unable to say that Mr. Cobb's figures should not have been accepted; the learned Judge has given good reasons for having done so.

I would therefore dismiss this unmeritorious appeal with costs.

ŕ

JOHNSON, Ag. C. J.—I have read the judgment of my brother, the Acting Chief Justice of Uganda, and I agree and have nothing to add.