026-SLLR-SLLR-1998-V-3-AMEEN-v.-SALAHUDEEN-OTHERS.pdf
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Ameen v. Salahudeen & Others
185
AMEEN
v.SALAHUDEEN & OTHERS
COURT OF APPEALWIGNESWARAN, J.,
JAYAWICKREMA, J.
A.LA. NO. 276/95
C. COLOMBO NO. 5794/ZLAUGUST 17, 1998SEPTEMBER 9, 1998
Civil Procedure Code – S. 18, 3 & 4 (1), 327, 343, 345, 404, 839 – Additionof Parties – After consent decree was entered – Can the decree be set aside.
A consent decree was entered among the plaintiff-respondent, 1st respondent-respondent and 2nd defendant-petitioner. The plaintiff-respondent failed and neglectedto fulfil his obligations under the decree, and the 2nd defendant-petitioner soughtto enforce the consent decree. While this Inquiry was pending, the petitioner-respondent who was an outsider filed papers for intervention under s. 18 of theC.P.C. The learned District Judge allowed the application.
Held:
Per Wigneswaran, J.
‘It is not open to third parties to set aside a consent decree unless ofcourse the parties to the consent decree had no contractual capacity orthere was lack of jurisdiction on the part of the court due to statutoryreservations or such other grounds which made it necessary for the courtto reconsider whether the consent decree should stand.
In this case the fraud alleged relates to the non disclosure of the consentdecree entered in this case, in another case and the person pleading fraudis an outsider who was not a party to the consent decree0.
The purpose of addition of parties according to s.18 (1) is to enable the. court to ‘effectually and completely to adjudicate upon and settle all the
questions involved in an action.
Once court enters decree, it is functus barring its right to enforce the decreeor execute its writ.
186
Sri Lanka Law Reports
119981 3 Sri LR.
APPLICATION for leave to Appeal against the Order of the District Judge,Colombo.
Cases referred to:
Cooray v. Gaffar CA 92/80 DC Panadura (552) CAM 18.2.1983.
Pitisinghe v. Ratnaweera 62 NLR 572.
Norris v. Charles 63 NLR 501.
Richford Trading Company vs Miyanawita Estate Co., Ud. and another –
CA 790/84 DC Colombo 47303RE – CAM 13.9.1985.
Maheuthiran for the 2nd defendant-petitioner.
F. C. Perera with M. F. Miskin for the petitioner-respondent plaintiff respondent,1st defendant-respondent absent and unrepresented.
Cur. adv. vult.
December 2, 1998.
WIGNESWARAN, J.
Leave to Appeal against the order of the learned Additional DistrictJudge, Colombo, dated 30.11.1995 was granted by this court on
25.08.97.
In this case a consent decree was entered in the District Courtof Colombo among the plaintiff-respondent, 1st defendant-respondentand 2nd defendant-petitioner on 27.02.1991. In terms of the agreementreached between parties, the plaintiff-respondent had to pay the 2nddefendant-petitioner a sum of Rupees Two Million Five HundredThousand (Rs. 2,500,000/-) on or before 31.12.91. If so paid, theplaintiff-respondent was entitled to take out writ. If not paid, the 2nddefendant-petitioner was entitled to eject the plaintiff-respondent fromthe land and premises which were subject matter of the action.
Since the plaintiff-respondent failed and neglected to fulfil hisobligations under the decree, the 2nd defendant-petitioner sought toenforce the said consent decree.
While inquiry into the enforcement .of the decree in favour of the2nd defendant-petitioner was pending, the petitioner-respondent whowas an outsider as far as the parties to the original case wereconcerned, filed papers for intervention and for addition as a party
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in terms of section 18 of the Civil Procedure Code. This was objectedto by the 2nd defendant-petitioner.
After written submissions and documents were filed by both parties,the Additional District Judge, Colombo, made order on 30th November,1995, allowing the intervenient to be added as a party in this case(No. 5794/ZL) after consent decree had been entered.
The learned counsel for the 2nd defendant-petitioner has taken upthe following matters for consideration by this court :
Since rights of original parties to the case had crystalised ina decree the District Court was functus and it had no jurisdictionto reopen the case and act under section 16 of the CivilProcedure Code to consider extraneous claims.
The purported intervention is an act in concert between theplaintiff-respondent and the Intervenient-petitioner-respondent.
The claim of the petitioner-respondent had nothing to do withthe principal action which related to title to property.
In any event the alleged claim of the petitioner-respondentagainst the 2nd defendant-petitioner had culminated in a decreein the District Court of Colombo in case No. 17031/L.
The only argument put forward by the counsel for the Intervenient-petitioner-respondent was that there had been fraud on the part ofthe 2nd defendant-petitioner. He applied for reliefs under sections 343,344, 345 & 404 of the Civil Procedure Code. He also applied for court'sintervention under section 839 of the Civil Procedure Code.
The fraud perpetrated, if any, to the extent this court is able togather from the written submissions filed by the petitioner-respondent,related to the filing of case No. 17031/L in the District Court of Colomboagainst the petitioner-respondent by the 2nd defendant-petitionerwithout disclosing the consent decree entered in the instant Case No.5794/ZL. If any such fraud had been perpetrated on the petitioner-respondent in case No. 17031/L he should have taken the matter upin that case. But he had failed to do so since an ex parte decreeis said to be validly existing against him in that case. The person
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Sri Lanka Law Reports
[1998] 3 Sri LR.
or persons who could attack the consent decree entered in this caseon the ground of misrepresentation or fraud would be the parties tothe consent decree themselves. It is not open to third parties to setaside a consent decree unless of course the parties to the consentdecree had no contractual capacity or there was lack of jurisdictionon the part of the court due to statutory reservations or such othergrounds which made it necessary for the court to reconsider whetherthe consent decree should stand. In this case the fraud alleged relatesto the non-disclosure of the consent decree entered in this case inanother case and the person pleading fraud is an outsider who wasno party to the consent decree.
The learned Additional District Judge seems to have misunderstoodthe scope of section 18 (1) of the Civil Procedure Code. The sectionreads as follows:
"The court may on or before the hearing, upon the applicationof either party, and on such terms as the court thinks just, orderthat name of any party, whether as plaintiff or as defendantimproperly joined, be struck out; and the court may at any time,either upon or without such application, and on such terms as thecourt thinks just, order that any plaintiff be made a defendant, orthat any defendant be made a plaintiff, and that the name of anyperson who ought to have been joined, whether as plaintiff ordefendant, or whose presence before the court may be necessaryin order to enable the court effectually and completely to adjudicateupon and settle all the questions involved in that action, be added".
The purpose of addition of parties according to section 18 (1) isto enable the court to “effectually and completely to adjudicate uponand settle all the questions involved" in an action.
When the consent decree in this case had adjudicated upon andsettled all questions involved in this action there was no room forthe addition of parties because the decree as pointed out by thelearned Counsel for the 2nd defendant-petitioner had crystalised withinitself rights and interests of parties which were brought to the noticeof court for determination at the beginning of the case. Once the court
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Ameen v. Salahudeen & Others (Wigneswaran, J.)
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entered decree it was functus barring of course its right to enforcethe decree or exectute its writ.
In the following cases addition of parties after decree was heldto be ex facie bad in law:
Cooray v. Gaffar111
Pitisinghe v. Ratnaweerat®
Norris v. Chariest3)
Richford Trading Company v. The Miyanawita Estates Co., Ltd.and another.
In the last case above-mentioned Justice Jayalath stated as follows:
"It appears to me however, that the petitiioner-appellantpreferred to come to this court by way of revision in order to seeka stay order to prevent the writ being executed. This indeed isa ruse often adopted by tenants and sub tenants in defiance ofthe rent law and calculated to prevent the law to take its coursein order to remain in the premises as long as possible".
One wonders whether the application by the petitioner-respondentin this instance was an application made by him in concert with theplaintiff-respondent who was unable to abide by the terms of theconsent decree, to frustrate the efforts made by the 2nd defendant-petitioner to obtain relief under the consent decree.
In the same case Justice Jayalath went on to state:" But wherea subtenant was not so added, and the landlord had already obtainedthe decree against the ternant alone and has applied to be placedin possession of the premises, the proper procedure for the court toadopt in the first instance is to direct that 'constructive delivery’ ofthe premises be given by the Fiscal to the landlord under the provisoto section 324 (1) and thereafter to investigate the landlord's claimunder section 327 of the Civil Procedure Code".
Thus the procedure ordinarily to be adopted in case the executionof a decree affects adversely a person not a party to a case, is laiddown above.
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Sri Lanka Law Reports
I1998] 3 Sri L.R.
There is no doubt that the claim of the petitioner-respondent hasnothing to do with the principal claim in this case. The principal claimrelated to certain declarations prayed for and ejectment. The petitioner-respondent sought to intervene on the basis that he had entered intoa Notarial Agreement with the 2nd defendant-respondent to purchasepremises bearing No. 20/7, Madampitiya Road, Colombo 15, allegedlya portion of the land and premises which formed the basis of themain action. His problem therefore appears similar to the problem ofthe sub tenant not added referred to by Justice Jayalath above.
Finally it is to be noted that the 2nd defendant-petitioner had suedthe petitioner-respondent for ejectment in DC Colombo No. 17031/L. Ex parte decree was entered therein against the latter. An appli-cation made by the petitioner-respondent to vacate the ex parte decreewas refused. Thus the petitioner-respondent having lost his rights incase No. 17031/L cannot now hope to attack the decree entered inthe earlier case collaterally by the ruse of having himself added asa party in this case.
The contents of sections 343, 344, 345 and 404 of the. CivilProcedure Code are not relevant to the question of whether thepetitioner-respondent should have been added as a party under section18 of the Civil Procedure Code.
We are therefore satisfied that the order dated 30.11.1995 allowingthe addition of the petitioner-respondent as a necessary party afterdecree was entered, was ex facie bad in law and therefore set it asideand declare void all steps taken by court based on that order as fromthe time of such order.
The petitioner-respondent will pay Rs. 10,500 as costs to the 2nddefendant-petitioner. The plaintiff-respondent and the 1st defendant-respondent shall each bear their own costs.
JAYAWICKRAEMA, J. – I agree.
Appeal allowed.