070-NLR-NLR-V-54-D.-A.-SUWARISHAMY-Appellantand-G.-D.-THELENIS-et-al-.Respondents.pdf
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G-UN’ASE'KARA J.—Suwarishamy v. Thelenis
1952Present:Gunasekara J. and Swan J. .A. SUWARISHAMY, Appellant, and G. D. THELENTS et al.,
Respondents
S. C. 119—D. G. (Inty.) Kalutara, 26,351
^Appeal—Necessary party omitted—Discretion of Court to rectify defect—CivilProcedure Code, s. 770.
Where, in ah appeal, a necessary party has not been made a respondent, theappeal will be dismissed unless the defect is not one of an obvious character whichcould not reasonably have been foreseen and avoided.
j/.PPEAL from an order of tlie District Conrt, Kalutara.
D. Cosme, with O. JH. da Silva, for the inter venient, appellant.
R. Gunaralne, for the 1st plaintiff respondent.
October 13, 1952. Gunasekara J.—
Counsel for the respondent, who is the 1st plaintiff, takes the objectionthat the appeal is not properly constituted in that the 3rd plaintiff, who isa necessary party, has not been made a respondent. Counsel for theappellant agrees that she is a necessary party but asks that we shouldexercise the discretion vested in this court by section 770 of the CivilProcedure Code and direct that she should be made a respondent. Theprinciples upon which that discretion should be exercised have been laiddown by a Bench of four Judges in the case of Ibrahim v. Beefoee 1. Itwas there held that where an appeal has not been properly constituted bythe necessary parties being made respondents to it the appeal shouldbe dismissed ‘1 unless the defect is not one of an obvious character which couldnot reasonably have been foreseen and avoided ”. In the present case,which is an actionfor partition of land, the order that is appealed from wasmade upon an intervention by the appellants, who claimed to have suc-ceeded to certain interests that at one time belonged to one Eliashamy.The learned District Judge after inquiry held that ELiashamy’s interestshave now devolved on the 1st plaintiff and the 3rd plaintiff. In thesecircumstances it is not possible to say that it was not obvious that the•3rd plaintiff was a necessary party or that the defect was not one that•could not reasonably have been foreseen and avoided.
It is urged by learned Counsel for the appellants that the order he asksfor would cause no prejudice and substantial justice would be done if theappellants are put upon terms. I am afraid I cannot agree that we canallow the application without departing from the principles laid down inIbrahim, v. Beebee. We are bound by an authoritative judgment of■this court and can exercise our discretion only in conformity with theprinciples there laid down.
The appeal is rejected with costs.
Swan J.—J agree.
(1916) 19 N. L. R. 289.
Appeal rejected.