Sri Lanka Law Reports
(2006) 2 Sri L. R.
COURT OF APPEALSOMAWANSA, J. (P/CA).
DC GALLE 14287/L (REVISION).
DECEMBER 5, 2005.
Civl Procedure Code, sections 18 and 754(2) – Application to be added as aparty – Refused – Leave to appeal or revision ? – Exceptional circumstancesnot pleaded – Onus on whom ?
The intervenient petitioner is seeking to revise an order of the trial Judgerejecting his application to have himself added as a party defendant.
(1) The petitioner was seeking to get himself added as a party in terms ofsection 18 of the Civil Procedure Code which application was rejected.His remedy as laid down in section 754(2) was to file a leave toappeal application against the impugned order of the learned Districtof Judge refusing his application.
Karolis vs. Dharmarathana Thero and Others
(Andrew Somawansa J. (P/CA))
per Somawansa, J. (P/CA):
“I am not at all impressed with the explanation given as to why he didnot follow the statutory remedy that was available to him in terms ofsection 754(2) nor has he explained his laches for moving in Revi-sion after three months from the delivery of the order."
(2) The onus is on the person to be added and not on the respondent toshow that he is entitled in terms of section 18 to obtain an order to beadded.
Peter Jayasekera with Kosala Senadheera for intervenient peitioner.
Rohan Sahabandu for plaintiff respondent.
ANDREW SOMAWANSA, J. (P/CA)This is an application seeking to revise and set aside the order of thelearned District Judge of Galle dated 22.10.2003 rejecting the applicationof the intervenient-petitioner seeking to have himself added as a partydefendant and for an order that he be added as a party defendant andallow him to file an answer. Intervenient-petitioner (hereinafter called thepetitioner) sought a stay order staying further proceedings in the originalCourt which of consent was granted and has been extended from time totime.
After the pleadings were completed and when the application wastaken up for argument both counsel agreed to resolve the matter by way ofwritten submissions and both parties have tendered their writtensubmissions.
The relevant facts are the plantiff-respondent (hereinafter called therespondent) instituted the instant action for declaration of title to the landmorefully described in paragraph 02 of the plaint and to define the boundariesof the said land. At the survey the petitioner had protested that his land isbeing surveyed and had given a letter to the Surveyor marked P3 requestingthat he be made a party on the basis that he is the owner of lot 01 in planmarked P2. Thereafter he had sought to get himself added as a party interms of section 18 of the Civil Procedure Code. The petition and affidavitof petitioner is marked P4 and P4(a). Thereafter as per journal entry 19dated 23.07.2003 marked P6 parties had agreed to resolve the matter byway of written submissions and at the conclusion of the inquiry into the
Sri Lanka Law Reports
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application of the petitioner the learned District Judge made the aforesaidorder which the petitioner is seeking to revise and set aside.
In the written submissions tendered counsel for the respondent hastaken up certain preliminary objections to the maintainability of thisapplication and it would be in order to consider them before we considerthe merits of this application. Counsel for the respondent submits that asthe petitioner is not a party to the instant action and thus made anapplication in terms of section 18 of the Civil Procedure Code to get himselfadded as a party which was rejected. In the circumstances he had astatutory remedy of appealing against the said order in terms of section754(2) of the Civil Procedure Code, The aforesaid section 754(2) of theCivil Procedure Code reads as follows:
“Any person who shall be dissatisfied with any order madeby any original court in the course of any civil action, proceedingor matter to which he is, or seeks to be a party, may prefer anappeal to the Court of Appeal against such order for thecorrection of any error in fact or in law, with the leave of theCourt of Appeal first had and obtained.”
As adverted to earlier, in this action the petitioner was seeking to gethimself added as a party in terms of section 18 of the Civil ProcedureCode which application was rejected by the learned District Judge. In thecircumstances his remedy as laid down in section 754(2) was to file aleave to appeal application against the impugned order of the learned DistrictJudge refusing his application. However, the petitioner without havingrecourse to his statutory remedy available to him under section 754(2) ofthe Civil Procedure Code has come by way of revision. In the circumstancesthe contention of counsel for the petitioner that this objection taken by therespondent has no merit for revision as the mode of relief available as thepetitioner was never a party to the action in the lower Court cannot besustained and has to be rejected. I am not at all impressed with theexplanation given as to why he did not follow the statutory remedy thatwas available to him in terms of section 754(2) nor has he explained hislaches for moving in revision after Three months from the delivery of the
Karolis vs. Dharmarathana Them and Others
(Andrew Somawansa J. (P/CA))
order which he is seeking to challenge. I would say there is force in theobjection taken by counsel for the respondent.
It is contended by counsel for the petitioner that the learned DistrictJudge has not addressed his mind to the relevant issues and has directedhis mind to irrelevant and trival matters, in that the learned District Judgehas not observed that the northern boundary described in the plan quotedin paragraph 02 of the plaint is a VC road. However, the Surveyor whoprepared plan No. 989 marked P2 shows the VC road not as the northernboundary but as running across lot 01 of his plan and.the lot to the north ofthe road has been claimed by the petitioner before the Surveyor. On anexamination of plan No. 989 marked P2 the aforesaid statement of counselfor the petitioner appears to be an incorrect statement for the plan showsthat the northern boundary of the land in suit is the VC road from Massalato Poddala and there is no VC road running across the middle of lot 01 asalleged by counsel for the petitioner.
Counsel for the petitioner also contends that as per the plaint therespondent has prayed for a declaration of title only and has not asked forejectment. The resulting position would be that even if the respondentsucceeds in the action he has to file a fresh action to obtain a declarationof title against the petitioner and also ask for ejectment. Thus if the petitioneris made a party to the action it would enable the Court effectually andcompletely to adjudicate on all question involved in the action and therewould be no multiplicity of action. However as material placed before thelearned District Judge which I would proceed to consider later would showthat the petitioner had no enforceable right.
When the inquiry was taken up before the learned District Judge, itappears that the petitioner agreed to resolve the matter by way of writtensubmissions and now he cannot be heard to say that he was denied ofaninquiry. Now we will consider the important document marked P11 submittedwith the statement of objections as averred in paragraph 15 thereof. At notime was this letter marked P11 denied by the petitioner which is dated22.10.1970. In this document marked P11 given by one W. H. K. David, itis admitted that he is a lessee of the temple at a rental of Rs. 650. Thepetitioner did not deny the contents of this letter. In fact in ihe written
2- CM 8101
Sri Lanka Law Reports
(2006) 2 Sri L. R.
submissions of the petitioner in the District Court marked P7 the petitioneraccepted the position that David his brother was running a business underthe name ‘Anura Stores' and now the petitioner is running the aforesaidbusiness, vide paragraph 08 of the petitoner’s petition and the correspondingparagraph in the affidavit and also paragraph 08 of his written submissions.If the aforesaid statements are read with P11 the resulting position wouldbe an admission by the petitioner that he came into the property as alessee of the High Priest when he took over the business from his brotherDavid and then continued to be a lessee of the temple. This documentmarked P11 was referred to by the learned District Judge in his order. Thepetitioner in his application to this Court has taken up the position that hisbrother David always signed his name in English and not in Sinhala asshown in the document marked P11. In proof of this fact he produces adeed of transfer carrying his brother’s signature marked P13.(a) and thesignature of his brother in the post office savings bank book as P14(a).However, these documents were not placed before the learned DistrictJudge. On a consideration of his objections, affidavit and written submissionstendered in the District Court his position that his brother David alwayssigned in English appears to be an after thought.
The onus is on the person to be added and not on the respondent toshow that he is entitled in terms of section 18 of the Civil Procedure Codeto obtain an order to be added. It is to be seen that other than his claimbefore the Surveyor there is no other evidence forthcoming to establish hisclaim. While the document marked P11 had negated this claim.
In the circumstances on a balance of probability the learned DistrictJudge was correct in making the impugned order, having given cogentreasons for his order. The petitioner has failed to show any exceptionalcircumstances for this Court to exercise its extraordinary powers of revision.Accordingly the application is dismissed with costs fixed at Rs. 10,000.
WIMALACHANDRA, J. – I agree.
KAROLIS vs. DHARMARATHANA THERO AND OTHERS