Kumarihamy v. Dissanayafee.
Present: Dalton S.F.J. and Soertsz A.J.
KUMARIHAMY w. DISSANAYAKE et al.
106—D. C. Kandy, 43,639.
Party—Party added against whom no relief is claimed—Presence unnecessary—Answer filed by added party—Motion to strike off added party—Order made without jurisdiction—Civil Procedure Code, s. 18.
Where a person was added as a party to an action against whom norelief is claimed and whose presence as a party is unnecessary to settleall the questions involved in the action, any steps taken by the partyafter notice of the order will not disentitle him to have the order setaside on the ground that it was made without jurisdiction.
1 (1925) Income Tax Cases (Indian) sol. II., p. 119.
346DALTON S.P.J.—Kumarihamy v. Dissanayake.
^ PPEAL from an order of the District Judge of Kandy.
H. V. Perera (with him G. E. Chitty), for added party, appellant.
January 15, 1936. Dalton S. P. J.—
The appellant here is a person who had been added as a party to theaction, the Court purporting to act under the provisions of section 18of the Civil Procedure Code. There is no appearance for the respondentsin support of the order appealed from.
The action is brought by the plaintiff against two defendants. Thefirst defendant is sued on a mortgage bond as mortgagor and the seconddefendant as purchaser from the first defendant of one of the mortgagedlands subsequent to the mortgage. The first defendant pleaded paymentto one T. B. Dissanayake as agent of the plaintiff to receive payment.In his answer the second defendant pleaded that at the time of thepurchase by him, the plaintiff by deed released the land purchasedfrom the mortgage. It appears therefore to have been quite a simpleand straightforward case. Issues were framed and a considerableamount of evidence was led thereon on the first day of trial, July 16, 1934,in the course of which the second defendant left his defence in the handsof the first defendant. T. B. Dissanayake was on the second defendant'slist of witnesses. I am unable to find on record the first defendant’sfirst list, but having regard to his answer, presumably Dissanayakemust have been his most important witness. On a subsequent date,October 15, the first defendant moved to have T. B. Dissanayake addedas a party, under the provisions of section 18 of the Civil ProcedureCode. The grounds for this application set out in the motion paperare “ the issues framed ” and “ the evidence already recorded ”. Onthat day, without any notice to the proposed added party, the plaintiffand the second defendant consenting thereto, the learned trial Judgeallowed the motion, the first defendant undertaking to pay the addedparty’s costs, if found to have been unnecessarily added. Summonswas ordered to issue to the added party with a copy of plaint and answersfiled. No attempt seems to have been made to amend the plaint in anyway (cj. remarks of Withers J. on this point in Wiraratne v. Ensohamy ’),apart from the addition of the added party’s name to the caption, andno amended plaint was filed. Even if the Court had power to make theorder, the procedure followed was also quite irregular (see Banda v.Dharmaratne ’).
Service was duly effected upon the added party on November 5.- Hisproctor filed a proxy on November 23, empowering him “ to move forand obtain time to file answer and thereafter to file my answer in theaction No. 43,639 wherein I am added defendant, and to do all thingsnecessary therein on my behalf, and generally to defend me in the sameaction ”. Before filing answer, the proctor moved on December 3, onbehalf of the added party, for an order on the first defendant to producefor the inspection of the added party all receipts and other documentsin his possession in proof of the payments alleged to have been madeby him to the added party, before the latter filed his answer. This was> 2 C. R. V>7.2 24 N. L. R. 210.
DALTON S.P.J.—Kumarihamy v. Dissanayake.
allowed and the • record shows that the documents were produced onDecember 13 and handed to the added party’s proctor. Thereafter onDecember 20 his answer was filed.
The first plea in the answer is that the order making him an addedparty was .wrongly obtained, and that such addition was contrary tolaw and to the provisions of the Code, the plaint and replication and thefirst defendant’s answer disclosing no cause of action against him, andno remedy being claimed as against him. This plea in the ordinarycourse would only come on to be disposed of at the trial, since at thatstage the added party did nothing but raise it in his answer.
On March 15, 1935, the plaintiff then moved that the defendants andthe added party produce documents for inspection. In reply to thismotion the added party filed an affidavit oil March 29, objecting todeclare what documents he had relating to the action on the groundthat the validity of the order adding him as a party should be firstadjudicated upon. The Court then on April 8 proceeded to deal withhis objection, treating his affidavit as an application for an order declar-ing his addition as a party to the action was contrary to law and to theprovisions of the Code. On April 16 the learned Judge delivered hisjudgment dismissing the application. He held that the added partywas a necessary party to enable the Court once and for all to decideand settle all the matters in dispute arising out of the plaintiff’s claimon the bond. From that order the added party appeals.
It is clear that the appellant has not moved the Court to have theorder of October 15, 1934, set aside on the grounds he alleges in hisanswer, within a reasonable time after knowledge of the order madeagainst him. It is admitted, also, that after receiving notice of the order,he took at least two steps as a party to the action, namely, his motionof December 3 and his answer filed on December 20, before applyingto the Court on March 29 to have his name struck off as a party. Thereis authority also to show that assuming the Court had power to makethe order against him, it was irregular inasmuch as it was made withoutnotice to him. If the order he complains of was only an irregular one,I should hold that in the circumstances i have set out he was not entitledto the relief he now claims.
The order of October 15, however, appears to be more than irregular.I have no difficulty in holding that, on the material before the Court,the presence of Dissanayake as a party was quite unnecessary for thepurpose of enabling the Court effectually and completely to adjudicateupon ajnd settle all the questions involved in the action. He was clearlyon the pleadings an important witness, so far as the first defendant wasconcerned, but no right to any relief against him is claimed by theplaintiff in his plaint or by the defendants in their answers, and no rightto any such relief is even alleged to exist in the pleadings or issues. AsI have pointed out, there were in effect two simple questions of fact tobe answered.
That being so, it would seem that the matter was not a question ofthe discretion of the learned Judge in making the order of October 15,1934, but one of jurisdiction (see Moser v. Marsden'). We were referred
i (1892) 1 Ch. 487.
KOCH A.J.—Attorney-General v. Coder.
also to the decision of this Court in Punchirala v. Punchirala If hehad no jurisdiction to make the order, the steps taken by the addedparty after notice of the order will not disentitle him to the relief he nowseeks. On the ground therefore that the order was one made withoutjurisdiction, it must be set aside and the appellant’s name deleted fromthe action as an added party. He must, however, pay the wasted costs(if any) incurred by the other parties, as a result of his delay in applyingto the Court to have his name struck off as a party in the action, afterNovember 5, 1934, up to, but not including, April 8, 1935. He mustalso return to the first defendant all the documents referred to in theminutes of the Court of December 6 and 12, 1934. He will pay his owncosts of the inquiry of April 8, and in all the circumstances I would makeno order as regards the costs of this appeal.
Soertsz A.J.—I agree.
KUMARIHAMY v. DISSANAYAKE et al