121-NLR-NLR-V-43-ARUMOGAM-v.-VAITHIALINGAM.pdf
DF. KRETSER J.—Arumogam v. Vaithialingam.
493
1942Present: Howard C.J. and de Kretser J.
ARUMOGAM v. VAITHIALINGAM.
17—D. C. (Inty.) Jaffna, 16,669.
Intervention of parties—Action on mortgage bond—Claims to money lent bythird parties—Right to intervene—Civil Procedure Code, s. 18.Plaintiff sued to recover money 'due on a mortgage bond, in whichit was stated that he was lending his daughter’s money. The defendantadmitted the debt, but alleged that there were other claimants to themoney and asked the Court,to decide to whom he should pay it.
Persons, alleging to be heirs of plaintiff’s daughter, sought to intervenein the action.
Held,, that the parties should not be added under section 18 of theCivil Procedure Code.
PPEAL from an order of the District Judge of Jaffna.
N. Nadqrajah, K.C. (with him V. K. Kandasamy), for plaintiff,appellant.
P.Navaratnarajah, for intervenient respondents.
Cur. adv. vult.
July 13, 1942. de Kretser
The plaintiff lent the defendant money on a mortgage bond and nowseeks to recover it. The defendant admits the debt and professes hiswillingness to pay it but alleges there are counter-claimants and asks theCourt to decide whom he should pay it to. He has not brought the moneyinto Court and has gained quite a long extension of time already. Someminors claiming the money seek to intervene through a next friendand the trial Judge has ordered that they be added as defendants, pur-porting to act under section 18 of the Civil Procedure Code. Before us,Counsel for respondents did not rely on this section but referred us tosection 472, which clearly has no application. We reserved judgmentin order to consider the application of section 18, whereupon respondent’sCounsel referred us' to page 1111 of Chitaley on the Indian Code, where along list of cases is given. Clearly none of them apply or Counsel wouldhave cited to us the case which did.
It is essential in the first place to remember that this is an actionbased on contract and the only contracting parties are the plaintiff andthe defendant. In the bond, plaintiff went out of his ,way to allege43/351 42 N. L. R. p. 317.
494DE KRETSER J.—Arumogam v. Vaithialingam.
that he was lending his daughter’s money and it is his daughter’s heirswho seek to intervene. Plaintiff alleges he has paid his daughter andthat the money is his. The only dispute is between the plaintiff andthese heirs and that dispute will not arise in this action unless and untilthey intervene. It is not a question involved in the action until then,and in fact it arises from a separate cause of action.
It might be convenient to settle the dispute now but there are alsodangers and difficulties in allowing them to come in. The Court is notobliged to let them in and in exercising its discretion it ought to considerall aspects of the matter. It is not alleged that the plaintiff is notsolvent nor is it clear whether a dispute may not arise as to whether thewould-be intervenients are the heirs or the sole heirs of the plaintiff'sdaughter.
The defendant has not brought the money into Court, and delay mayspell loss to both claimants. In any case, is the section applicable ?If it is, one may have the case of a landlord suing his tenant for rent.The tenant cannot dispute his landlord’s title, but third parties may seekto come in on the ground that they are the real owners of the propertyand so a simple action for rent may be converted into a case for settlingtitle to property, not among two but possibly more claimants.
The answer to the question seems to be that in an action on a contractextraneous matters ought not to be allowed to come in but only somematter directly arising from the contract itself and quite subsidiary to it.
Let us, however, examine the authorities. The trial Judge relies onthe case of Meideen v. Banda', decided in 1895. Of the three Judgeswho heard the appeal, LaWrie A.C.J. disagreed with the other two andsaid : “ Between the parties to the action there is no contest ; no questionto be tried. I doubt whether there are here the conditions required byLord Esher, for in this action there would be no evidence and no inquiryif Walarappa’s application be refused.” Browne J. gave other reasons,one of them being that defendant might otherwise be exposed to twoactions. Withers J., with some diffidence, allowed the intervention, butstated that he had not come across any instance in the English Courtswhere a party who might have been brought in on an interpleader hadbeen added at his own instance, and that apparently Indian cases wereagainst the application. He purported to act on a statement by LordEsher on a corresponding section in the English Statute. Lord Eshersaid it should be given a wide application and that it would be enough ifthe main part of the inquiry would be the same.
It will be seen that the decision in the case of Meideen v. Banda (supra)was not only the earliest one on section 18 but went on the particularfacts of the case. There the mortgagee’s rights had been sold underwrit to Walarappa Chetty and assigned privately by the mortgagee,Meideen, to the plaintiff. Both claimed on the same contract againstthe same defendants and the question was, who had stepped into themortgagee’s shoes. Withers J. said that the main inquiry would bewhether Meideen had any interest in this chose of action at the time hepurported to assign it to the plaintiff, or had power to dispose of it.That would be the main question theoretically and it was so in fact
> l .v. L. R. 61.
DE KRETSER J.—Arumogam v. Vaithialingarn.
495
since the defendant had disclosed the existence of a counter-claimant.There had been no deposit. Browne J. thought that defendantsshould be required to deposit the amount due. In fact, decree nisi hadbeen entered against all the defendants, even against those admittingthe debt.
Coming to later times, we get the case of Raman Chetty v. Shaw There one Raman Chetty, clearly indicating he was an agent by prefixingthe Chetty firm’s initials to his name, sued on a promissory note. Onobjection being taken as to the action being maintainable, the principalsought to intervene. The trial Judge allowed the application as removingall possible doubt as to who was entitled to the money. The proceedingwould seem to preclude multiplicity of actions, to, save costs, to allowthe Court finally to decide matters. Garvin J. refused the applicationas the presence of the principal was not necessary to supplement andcomplete the right of the plaintiff to sue in respect of the cause of actionaverred nor for the final determination of the matters in dispute betweenRaman Chetty and the defendants. Maartensz J. agreed in a separatejudgment that Raman Chetty’s right was complete in itself on thecontract.
In Thangamma v. Nagalingam", an action on a mortgage bond,Soertsz J. refused the application of a person to intervene on the groundthat he had an interest in the action as he had seized the-property mort-gaged under writ and the action was a collusive one intended to defraudhim. Soertsz J. said he was not a necessary party for the effectual andcomplete adjudication or the questions involved in the case: he hadnothing to do with the questions involved in the action between theplaintiff and the defendant. Heame J. agreed. In Olagappa Chettiar v.Keith % the Court refused an intervention, Soertsz J. remarking thatthough the words of section 18 were very wide they must be interpretedin relation to and subject to sections 14 and 17 and no new cause ofaction ought to be brought indirectly.
Turning to English cases we get Montgomery v. Foy, Morgan & Co.1There the contract was one of affreightment under one bill of lading.All the disputes were concerned with that one contract, the bill of ladinggiven by the plaintiff to the British Saw Mills Company. That company,as the shipper of the goods, was liable eventually to pay the freight.On the ship’s arrival in London there was no one to take delivery of thecargo and the master of the ship placed them in the custody of a certaincompany, as he was entitled to do, giving them notice of his lien on thegoods for his freight. The defendants as agents and consignees for salefor the British Saw Mills Company deposited the freight and took delivery.The plaintiff then brought this action, claiming a declaration of lienand that the money be paid to them. The British Saw Mills Companyhad a claim to make against plaintiff for short delivery and damage tothe goods and sought to intervene. Lord Esher pointed out that thoughthe plaintiff had a claim to the freight, that claim was subject to the claimin respect of damage from an alleged breach of contract and one trial
1 43 N. L. n. 491.
• 73 Law Times IS.
J 33 N. L. R. 16.
= 39 N. L. R. 143.
496DE KRETSER J.—Arumogam v. Vaithialingam.
would enable the Court to decide all “ questions involved in the causeor matter”. Kay L.J. pointed out that the freight eventually cameout of the pockets of the shippers, the British Saw Mills Company,and the plaintiff objected to their being added because the Companyhad a claim which might reduce the amount they would pay. Smith L.J.went on similar grounds. The party seeking to come in was in fact oneof the persons directly concerned and in a case on the contract on whichthe case was founded would ordinarily have been the party sued.
It will be noted in passing that in the English Statute the words are“ questions involved in the cause or matter ” and the words of section 18are “ questions involved in the action ”. In Byrne v. Browne relied onby Withers J., Lord Esher said: “Although it may be necessary to gointo some subsidiary questions between the parties who are brought inand the original parties, which would not have arisen in the originalaction, if the main inquiry is the same as regards all the parties, the mainpart of the evidence will be the same ; and so another great principle ofthe Judicature Acts, the diminishing of the costs of litigation, will becarried cut ”.
That was an action by a lessor against the assignee of the executorsof the lessee, for damages. Defendant moving and plaintiff not objecting,the executors of the lessee were added as defendants in order that theymight call upon the assignee (thought not to be liable on the contractitself since assigns were not mentioned) to indemnify the executors.The executors consented to being added. The assignee did cause thealleged damage and would eventually have to pay the executors ; i.e.,he was not being made subject to a new liability. Emphasis was laid inthe judgments on the fact that all the other parties consented and tothe fact that the assignee could not possibly be hurt by being joined.
I do not refer to earlier cases as they took a more restricted view ofthe provision in the Statute.9
Now, there is no doubt that section 18 should be liberally interpretedbut that must be done on some principle. Earlier decisions in Englandseemed to say that the plaintiff should consent to the intervention.That view is not now held. But in all the cases the questions arosefrom the contract itself and the main body of evidence would apply'whether the questions were tried in one action or in separate actions.
Suppose, in the case before us, the plaintiff had omitted to state the"'source of his supply (a matter of evidence really), would it be open ;tO;!some third party, say a Bank, to come in and say he was the .supplier ’of the money and so ought to be allowed to intervene and recover it ?t think the answer is clearly in the negative, and I do not see that adifferent principle applies in this case. If the intervention be allowed,then quite a separate matter will become the main subject of inquiry,in fact the sole matter of inquiry. The intervenients can establish theirrights in a separate action quite as conveniently and the cost to themwill be exactly the same. The only person likely to benefit by theintervention is the defaulting defendant. 1
1 60 Law Times 651.
HEARNE J.—Mohideen v. Senanayake.
497
In my opinion, the order made in the Court below is wrong.
This appeal is allowed and the intervention dismissed, the next friendof the intervenients paying the costs of this appeal and of the proceedings
in the Court below.
Howard C.J.—I agree.
Appeal allowed.