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George Summerly Carmichael Cole Vs. Catherine Ann Harper - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1919All228; 50Ind.Cas.780
AppellantGeorge Summerly Carmichael Cole
RespondentCatherine Ann Harper
Cases ReferredKeymer v. Viswanatham Reddi
Excerpt:
civil procedure code (act v of 1908), section 13 - judgment on merits, what is--summons accepted by solicitor on behalf of defendant--appearance by solicitor--judgment on plaintiff's evidence, whether on merits. - .....before mr. justice darling, and a special jury, when judgment was given for 250 and costs. in the present suit, which was based upon that judgment, the defendant was examined as, a witness, and deposed to the fact that he was called away from england' rather suddenly after the outbreak of war and that consequently he was unable to appear and defend the suit in london. it is accordingly contended on his behalf that the judgment was not a judgment 'on the merits' within the meaning of section 13 of the code fit civil procedure. that section provides that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties, except in certain cases, one of which is where the judgment has not been given 'on the merits.' it is quite clear that a.....
Judgment:

1. This appeal arises out of a suit which was brought on foot of a judgment of the High Court of Justice in England. Its appears that the plaintiff brought an action in England against the defendant for personal injuries alleged to have been caused by the negligence of the defendant in the management of his motor oar. It appears that the action was tried in England in the year 1913 before Mr. Justice Darling, and a Special jury, when judgment was given for 250 and costs. In the present suit, which was based upon that judgment, the defendant was examined as, a witness, and deposed to the fact that he was called away from England' rather suddenly after the outbreak of war and that consequently he was unable to appear and defend the suit in London. It is accordingly contended on his behalf that the judgment was not a judgment 'on the merits' within the meaning of Section 13 of the Code fit Civil Procedure. That section provides that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties, except in certain cases, one of which is where the judgment has not been given 'on the merits.' It is Quite clear that a solicitor accepted service of the writ of summons and entered appearance on behalf of the defendant and that the case came regularly before a Judge and Jury. We will assume in the defendant's favour that his absence was due to his being required to return at very short notice to India. The only question which we have to decide is whether the judgment was given 'on the merits.' In support of the defendant's contention that it was not on the merits, the case of Keymer v. Viswanatham Reddi 38 Ind. Cas. 683 : 40 M. 112 : 15 A.L.J. 92 : 21 M.L.T. 78 : 32 M.L.J. 35 : 5 L.W. 342 : 19 Bom. L.R. 206 : 21 C.W.N. 858 : 25 C.L.J. 233 : 10 Bur. L.T. 175 : 44 I.A. 6 (P.C.) has been cited. In that case the defendant was sued in England and interrogatories were administered to him on behalf of the plaintiff. The defendant refused or neglected to answer the interrogatories, whereupon an application was made on behalf of the plaintiff under Order XXXI, Rule 21, of the English Judicature Act which provides that where a defendant fails to comply with an order to answer interrogatories, he shall he liable to have his defence struck out and. to be placed in the same position as if he had not defended. The application of the plaintiff was granted and judgment was-entered against the defendant under the provisions of his rule. Their Lordships of the Privy Council held that under the circumstances of that case the judgment had not been given on the merits.' In the present case the circumstances, we need hardly say, are quite different. In the case quoted the judgment followed as a penalty upon the defendant not complying with the order of the Court and the facts and circumstances of the case were never gone into at all. In the present case the evidence of the plaintiff herself, or some other evidence, had to be given before the Jury could find a verdict in her favour. We think that the judgment in the present case was a judgment given 'on the merits' within the meaning of that expression in Section 13 of the Code of Civil Procedure and consequently the judgment was conclusive between the parties. The result is that the appeal fails and is dismissed with costs.


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