Doris Siriwardane and Others vs. de Silva
DORIS SIRIWARDANE AND OTHERSvs
DE SILVACOURT OF APPEAL.
CALA 27/2003 (LG).
DC COLOMBO 369/TRUST.
FEBRUARY 27, 2006.
Civil Procedure Code, sections 18 and 839 — Could the plaintiff add a newparty by an amended plaint ?—Applicability of section 839 — Inherent powersof Court — Can it override the express provisions of the Code ?
The plaintiff respondent instituted action and sought a declaration that the.1st and 2nd defendants are holding the property in trust for the plaintiff and anorder directing the 1st and 2nd defendants to execute a deed transferring theproperty to the plaintiff. The 1st and 2nd defendant appellants moved for adismissal of the action.
Before the case was fixed for trial the plaintiff sought to amend the plaintand add 3rd, 4th and 5th defendants and sought a declaration that the 1st and2nd defendants and 3rd, 4th and 5th defendants hold the said property in trustfor the plaintiff. The trial court accepted the amendment.
The plaintiff could not add new parties by an amended plaint whenspecific provisions are provided by the Code for addition of parties -section 18.
No party can succeed in getting a relief which is not prayed for in theprayer-in this case relief of addition of parties has not been prayed for.
Section 839 is not intended to authorize a court to override the expressprovisions of the Code.
Court should not have granted relief of addition of parties when theplaintiff had specifically acted contrary to the specific provisions laiddown – Section 18.
APPLICATION for leave to appeal with leave being granted from an order of theDistrict Court of Colombo.
Sri Lanka Law Reports
(2006) 2 Sri L R.
Cases referred to:
Kamala vs. Andiris 41 NLR 71
Lechman Company Ltd. vs. Rangalle Consolidated Ltd. 1981 2 Sri LR – 373
S. A Parathatingam, PC with Faizer Musthapha and Ms Amrisha Parathallngamfor 1st and 2nd defendant-petitioner.
M. A. Sumanthiran for plaintiff-respondent.
CHANDRA EKANAYAKE, J.The 1 st and 2nd defendant-petitioners (hereinafter some times referredto as the 1 st and 2nd defendants) by their petition dated 27.01.2003(supported by an affidavit) had sought leave to appeal against the order ofthe learned District Judge of Colombo dated 07.01.2003 (X13) to set asidethe same and to refuse the plaintiff-respondent’s application to amend theplaint. The plaintiff-respondent (hereinafter sometimes referred to as theplaintiff) had instituted action bearing No. 369/Trust in the District Court ofColombo against the 1 st to 3rd defendants. By the plaint dated 06.08.98the plaintiff had sought the following main reliefs (in addition to the otherinterim reliefs) interalia against the 1st and 2nd defendants who are herparents:
a declaration that the 1 st and 2nd defendants are holding the propertyin trust for the plaintiff,
(£>) an order directing the 1 st and 2nd defendants to execute the deedtransferring the said property to the plaintiff.
The 1st and 2nd defendants by their joint answer dated 02.10.98 hadmoved for a dismissal of the plaintiffs action. Thereafter before the casewas fixed for trial the plaintiff had filed a draft amended plaint dated05.03.2001 (X8) with a motion dated 30.03.2001 (X7) seeking interalia:
(a) a declaration that the 1 st and 2nd defendants and the 3rd, 4th, 5thadded defendants hold the said property morefully described in theschedule thereto in trust for the plaintiff,
Doris Siriwardane and others vs. de Silva
(Chandra Ekanayake, J.)
a declaration that the granting of a license to the 7th added defendantby deed No. 1073 dated 05.06.98 attested by V. A. Samararatne N.P. is null and void and of no force or effect in law.
a declaration that the reservation of life interest to themselves andto the 7th added defendant by deed No. 1080 dated June, 1998attested by V. A. Samararatne N. P. is null and void and of no forceor effect in law.
In the aforesaid amended plaint Himali de Silva and Rekha de Silva (twodaughters of the plaintiff), Dharmin Perera — Guardian-ad-litem for theminor 5th defendant and Ray de Silva (husband of the plaintiff) were namedas 4th, 5th, 6th and 7th added defendants respectively. It has to be notedthere was no relief for addition of 4th to 7th added defendants.
When the application to amend the plaint as aforesaid was objected toby the defendants after an inquiry the learned Judge by the impugnedorder dated 07.01.2003 (X13) had accepted the aforesaid amended plaint.This leave to appeal application was preferred from this order.
This Court by its order dated 19.10.2004 had granted leave to appeal onthe correctness of the order of the learned District Judge accepting theamended plaint.
It was contended by the Counsel for the plaintiff that the plaintiff becameaware of the execution of two deeds (D4 and D5) transferring the propertyin question which was said to have been held in trust in favour of theplaintiff by the 1 st and 2nd defendants, to the two daughters of the plaintiffwho were named as 4th and 5th added defendants in the caption of theamended plaint and granting license to the party named as 7th addeddefendant who is the husband of the plaintiff over the property in question.Further it was contended although the above two deeds bear the date01.08.98 at the time of filing of this action (06.08.98) there was no recordof registration of such deeds at the Land Registry. In those circumstancesthe plaintiffs position was that due to purported transfers and the grantingof license by the aforesaid deeds marked D4 and D5 the necessity hasarisen to add the two daughters and her husband as 4th, 5th and 7thadded defendants.
Sri Lanka Law Reports
(2006) 2 Sri L R.
The application to amend the plaint had been made before the day firstfixed for trial. What arises for consideration now is whether the plaintiffcould add new parties by an amended plaint when specific provisions havebeen provided by the Civil Procedure Code for addition of parties viz. section
On a consideration of the impugned order it is seen that the learnedtrial Judge had accepted the amended plaint and had allowed 4th to 7thdefendants also to be added as parties. By the amended plaint the plaintiffhad not sought relief of addition of 4th to 7th defendants. The basis of thelearned Judge’s finding is that it is not unreasonable to accept the aforesaidamended plaint.
The main question that arises for consideration now is whether theplaintiff can move for reliefs against parties who are not added as defendantsin the case – viz. against 4,5 and 7th defendants. Furthermore it has to benoted that without making them parties the plaintiff cannot claim any reliefagainst them. Next comes to my mind whether the reliefs which are notprayed for (to wit – adding them as parties to the action) could be grantedby the trial Judge. No party can succeed in getting a relief which is notprayed for in the prayer – in this case the relief of addition of parties hasnot been prayed for.
When specific provisions are provided by section 18 of the Civil ProcedureCode a party (here the plaintiff) cannot overlook the same and ask forvarious reliefs against those who are not so far added as defendants in thecase. In the instant case the plaintiff having totally failed to exhaust theabove remedy had proceeded to name them as 4 to 7 defendants in theamended plaint and moved for various reliefs against them. In this regard itwould be pertinent to consider the decision in the case of Kamala vs.Andirisf1>; where it was held that “Section 839 of the Civil Procedure Codeis not intended to authorize a Court to override the express provisions ofthe Civil Procedure Code”. Further’ text of the decision in LeechmanCompany Limited vs. Rangalla Consolidated Limited(2> too would be ofassistance in this regard. In the above case this Court has stated asfollows:
“this section (839) merely saves the inherent powers to make
such orders as may be necessary for the ends of justice or to prevent theabuse of process of the court. Where no provisions exist it is the duty ofthe Judge and it lies within his inherent power to make such order as thejustice of the case requires”
Doris Siriwardane and others vs. de Silva
(Chandra Ekanayake,' J.)
Section 839 of the Civil Procedure Code is to the following effect:
“Nothing in this Ordinance shall be deemed to limit or otherwise affectthe inherent power of the court to make such orders as may be necessaryfor the ends of justice or to prevent abuse of the process of the court.”
Perusal of the impugned order reveals that the basis of the finding toaccept the amended plaint had been since it was evident from the materialavailable that there was a dispute among the parties in relation to theproperty in question and if the amendment was not allowed the case of theplaintiff would collapse and it would be equivalent to a dismissal of theplaint. Next consideration of the trial Judge had been if the plaint isdismissed the plaintiff should be permitted to file a new plaint which wouldcause expenditure to both parties. By doing so the learned Judge hasfailed to consider whether the amended plaint could be accepted speciallywhen there had been no previous order to add 4 to 7 defendants as addeddefendants. On the other hand when there had been no relief claimed bythe plaintiff to add 4 to 7 defendants, learned Judge should not have allowedsuch a relief which was not prayed at all. Secondly, the learned Judgeshould not have granted the relief of addition of parties when the plaintiffhad specifically acted contrary to the specific provisions laid down foraddition of parties in section 18 of the Civil Procedure Code. In view of theauthorities cited above in any event the learned Judge could not havemade the said order even acting under inherent powers of court due to thereason that specific provisions have been laid down by section 18 of heCode. In those circumstances I conclude that learned trial Judge haderred when she made the impugned order and therefore the order dated7.1.2003 has to be set aside and the amended plaint has to be rejected.
For the foregoing reasons the impugned order dated 7.1.2003 is herebyset aside and the amended plaint is rejected. The appeal is allowed withcosts fixed at Rs. 7,500.
DORIS SIRIWARDANE AND OTHERS vs. DE SILVA