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June 14, 1911
Present: Wood Renton J.
CAROLIS APPU et al v. DIONIS APPU et al174—C. R. Avissawella, 6,682.
Civil Procedure Code, ss. 18 and 189—Power of Court to set aside its ownorder—Possessory action—Order to add lessors to warrant anddefend plaintiffs’ title—Subsequent order to strike them out.
Plaintiffs, who were lessees, brought a possessory action againstthe defendants. The defendants pleaded title. On a motion ofthe plaintiffs the lessors were made parties for the purpose ofwarranting and defending their title. At a later stage on theapplioation of the plaintiffs, the Commissioner struck out the namesof the added defendants. It was contended on appeal that theCommissioner had no power to set aside his first order.
Held, that he had the power to make the order under section18 of the Civil Procedure Code, as the lessors were improperlyjoined.
^1HE facts are set out in the judgment of Wood Renton J.
F. H. B. Koch, for appellants.
Morgan, for the respondents.
June 14,1911. Wood Renton J.—
The plaintiffs-respondents in this case, alleging that they werelessees under Don Peduru and Don Juse on a deed dated July 31,1906, of the land described in the plaint, and that they had been inpossession of the leased premises till September 17, 1909, sued thedefendants-appellants, who, they said, had dispossessed them on thatdate, to. recover a sum of Rs. 80 a year, with further damages, andto eject the defendants-appellants, and to recover possession. Theappellants in thier answer merely said that they were not aware ofthe truth of the respondents’ allegation as to their title, and putthem to the proof of it.. They admitted that they had entered onthe land and plucked'nuts, but denied that the entry was forcibleand unlawful, or that the respondents had sustained any damage inconsequence of it. There has been, in the progress of this case, agood deal of confusion, and I think that the. ball was first set rollingby the appellants themselves. In the 4th paragraph of theiranswer they setup title to an undivided one-fourth of the land by
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inheritance, and alleged that they had plucked nuts from that landin respect of their share. The respondents’ action was a possessoryone, and the appellants had no right to raise in their defence to thataction a plea of title at all. It ultimately produced its naturalresult in a motion on behalf of the respondents, at the suggestionof the learned Commissioner of Requests, that the lessors should bemade parlies for the purpose of warranting and defending their title.The lessors were called upon to show cause why they should not beadded. They had no cause to show, and they were in fact broughtin as added parties. At a later stage the learned Commissioner,on a formal application made to him for that purpose on behalf ofthe respondents under section 18 of the Civil iProcedure Code,struck out the names of the added defendants, and proceeded tohear the case. He ultimately gave judgment in favour of theplaintiffs-respondents. Against that judgment the present appealis brought.
The main point argued by Mr. Koch in support of it was that, asthe added parties had been brought into the case by an order of theJudge himself, it was not competent for the Judge at a later stageto set that order aside, and he called my attention to variousdecisions of this Court in which the rule has been laid down that aJudge has no inherent power to set aside an order made by him,except under the conditions recognized in section 189 of the CivilProcedure Code. I do not think that the principle of those decisionsis applicable to the present case. Section 18 of the Civil ProcedureCode expressly empowers the Court “ on or before the hearing, uponthe application of either party, and on-such terms as the Courtthinks just,” to order that the name of any party, whether as plaintiffor defendant, “ improperly joined,” be struck out. There can beiu* doubt but that the added parties were in this case improperlyjoined, for at the point of time at which they were added therespondents had no cause of action against them ; and that being so,I think that section 18 of the Code itself empowered the Judge tostrike out the names. It was frankly admitted by Mr. Koch thathis real grievance with the order was, not that the added parties hadbeen struck out, but that, in consequence of their having been struckout, he was no longer in a position to prove his plea of title in thepossessory action. As I have shown, it was the respondents them-selves who, in the first instance, gave rise to the confusion that hasarisen in this case by raising a plea of title improperly, and I do notthink that they have any claim to the indulgence of the Court inregard to it,
I dismiss the appeal with costs.
CarolisAppu, -v. Dionis
CAROLIS APPU et al v. DIONIS APPU et al