018-SLLR-1988-V2-EUGIN-FERNANDO-V.-CHARLES-PERERA-AND-OTHERS.pdf
EUGIN FERNANDOV.
CHARLES PERERA AND OTHERSCOURT OF APPEAL
S. B. GOONEWARDENA, J. AND
VIKNARAJAH. J.
A NO. 299/80
C. AV1SSAWELLA NO. 12300/LMARCH 16. 1988.
Rei Vindicatio Action — Plaintiff parting with titia oandente iita — Joinder ofPurchaser— Civil Procedure Code. Ss. 18. 204.
A party who has parted with his interests in the corpus pendants Iita can bring arei vindicatio action against the defendant adding the purchaser, as aCO-plaintiff.
VHNISIIIIBU w
Elias Appuhamy v. Punchi Bqnda 14 Nlfl 113
Silva v. Jayawardena 43 NLR 561.552
OssanLebbav. CadarLebba0899)2 AGR 175
Silva v. Jayasakera and another 30 CLW 111.112
Manindra Chandra Nanday v. Ram Kumar MR 1922 PC 307
Murugesu v. Gunaratne C'A/LA 29/79 Court of Appeal Minutes of18.7.1979
Kandasamy v. Meertambikai CA/LA 17/79 C. A Minutes of22. 8. 1979
Appeal from judgment of the District Court of Avissawella.
N. A. M. Daluwatte PC. with Rohan Sahabandu and Miss Jayasmghe fordefendant-appellant.
Days Guruge with Mrs. K. Srvapathasuntharam for plaintiff-respondent.
Cur. adv. vult.
May 17. 1988
S. B. GOONEWARDENE.X
– The only point that arises for consideration in this appeal is asto the effect upon the result of the action, of a transfer pendentelite of the interests of the original plaintiff in the subject matter toanother who was brought in as an added plaintiff.
The action was one for a declaration of title to a propertycalled Lots 3 and 4 and a portion of lot 2 depicted on plan No.830 of 4th February 1963 made by D. J. Nanayakkara, LicensedSurveyor from' and out of an Estate called Tekkawatte being apart of Verdun Group situated at Hanwella.
The original plaint of 1st October 1967 was one filed byMahapatunage Charles Perera upon which he sought adeclaration of title to these premises against the defendantWalimuni Dewage Eugin Fernando and asked by way ofadditional relief that the latter be ejected from the premises andthat he be awarded damages against her.
By deed No. 8852 of 12th April 1969 produced marked P18at the trial. Charles Perera transferred these premises toIddamalgodage Dona Gunawathie pending the action, and uponan application made in that behalf the latter was brought in andan amended plaint filed whereon Charles Perera figures as the1st plaintiff and Gunawathie as the 2nd.’The relief sought uponthe amended plaint was the identical relief sought upon theoriginal plaint, with the difference that both plaintiffs asked forSuch relief.
At the conclusion of the trial the District Judge held with theplaintiffs and granted them the relief asked other than thedamages. There can be no doubt that the evidence produced atthe trial established in ample measure the title relied upon by theplaintiffs.
In this appeal the point taken by Counsel for the defendant-appellant is that in view of the transfer by the 1 st plaintiff of histitle to the 2nd plaintiff during its pendency, the actionnecessarily must stand dismissed notwithstanding her presencebefore the Court as the 2nd plaintiff. Counsel for the defendant-appellant has relied strongly on the decision of the Full Bench inElias Appuhamy v. Punchi Banda (1) and the following passagefrom Voet 6:1:4 (Gane’s Translation Volume 2 p, 214:—"If in avindicatory action plaintiff • loses ownership pendente lite.defendant is discharged. Then again if he who sets this action inmotion was owner at the time of joinder of issue, but losesownership pendente lite. reason tells us that the defendant isdischarged, for the reasons firstly that the matter has come tothis pass that the action could not at that stage have a startingpoint nor any ground of existence from it; secondly, that theplaintiff has ceased to have an interest; and thirdly that the oneand only basis for such an action has been removed and wipedout".
With respect to this passage Keuneman J. in the case of Silvav. Jayawardena(2) said "It is clear that the action contemplatedby Voet was the action rei vindicatio, and I think it follows that allrights in r$m against the property are lost, when the dominiumhas been transferred pending the action to another person".
apparently taken here under the provisions of section 404 of theCivil Procedure Code..
The case of Elias Appuhamy v. Punchi Banda (Supra) was adecision of three Judges. The question there revolved around asimilar one as here, where certain defendants pleaded in theiranswer that as the plaintiff after the institution of the actionconveyed all his interests in the land in question to two others,fie was not entitled to maintain the faction. According to thenarrative of facts preceding the judgement (vide page t f 4). atthe trial the District Judge there framed an issue embodying thisproposition and while holding on that issue that the action wasnot maintainable, yet ordered that the transferees from the .plaintiff be brought in as added plaintiffs within a specified time.The judgment of Hutchinson C.J. appears to suggest that theplaintiff did acquiesce in such order, but what must be observedis that the bringing in of the transferees from the plaintiff was nota step initiated by the plaintiff himself or by the transferees. Indeedit would appear that in the appeal before the Full Bench. Counselappearing for the plaintiff contended that the Court, should nothave ordered the vendees to be joined as plaintiffs, (vide thearguments of Mr. Bawa set out at page 115). The importance ofthis is to highlight that the principal relief that appears to havebeen sought was the damages caused to the plaintiff by analleged wrongful removal of plumbago from the land in disputewhile the declaration of title sought with respect to the land wasonly incidental to that claim. That this is so appears in particularfrom the following words of Hutchinson C.J. (at page 116) Theplaintiff contended before the District Court that he shouldmaintain his claim for damages in this action without adding thepurchasers as plaintiffs; the Judge expressed his option that theaction must be dismissed unless the purchasers were added; andthe plaintiff accordingly asked that they Should be added, and theJudge allowed his request". It is also reflected in the words ofMiddleton J. (at page 118) The fact that his action is supposedto be in the form of an action rei vindicatio does not prevent himfrom abandoning that part of his claim seeking a declaration oftitle and ejectment and reducing his claim to one of damagesonly".
The question of whether the transferees from the plaintiff were.
. properly ordered to be joined in the circumstance of that casewas what the majority (Hutchinson CJ. and Middleton J.)concerned themselves with and such question was approachedin the background of whether a particular form of action wasnecessary to be adopted for theplaintiff to succeed.in getting hisdamages^ Middleton J.,(at page 118) put it thus: "If therefore he(the plaintiff) had a right to claim such damages I cannot see thathe is precluded by the form of his action .from proceeding inconformity with it for their recovery". The argument that hadbeen adduced for the defendant appellant and his ^(HutchinsonCJ.’s) response thereto is contained in the following words (at p.
. 116) 'The appellant's contention if I have rightly understood it isthat the order adding plaintiffs was irregularly made and shouldbe set aside, and that when that is done, the plaintiffs actionmust be dismissed, because there is a rule that a man cannotrecover what are called 'mesne, prof its' from a trespasser on. hisland, unless he gets at-the same time a decree declaring him to.be entitled to the' land: that the plaintiff admittedly cannot nowget such a-decree. and that the damages he claims are 'mesneprofits', or at any rate should be dealt with in the same way as ifthey were 'mesne profits'.. .The case of Osseri Lebbe v. CaderLebbe (3) was cited in proof of the alleged: rule, if there is such arule the original plaintiffs claim must fail, whether thepurchasers are added or not, because he is not now entitled tothe land, and the added plaintiffs are not entitled todamages forthe plumbago removed before their purchase.. From any point ofview, therefore: it was pot necessary to add the . purchasers asplaintiffs. For if there is such a rule, the plaintiffs claim must failwhether the purchasers are added or not". Rejecting theargument as put forward, be concluded (at page 1,17) by adding"They (the authorities cited) do not say and I cannot believe theymeant that, if a man has a right to recover damages for trespasson his land he loses it. and no one else acquires it when he.sellsthe land. And if he still had the right, he must have a remedy: theform of the action is no longer material"..
■ The majority of the Judges directed the setting aside of theorder of the District Judge, to bring in' the vendees a$ addedplaintiffs, and also directed that the'case go back to the District
Court for a trial to be had on the other issues and interestinglyupon the basis that the plaintiff (who had filed a cross objectionin the appeal), had substantially succeeded he was awarded hiscosts.
I have been at pains to cite extensively from these judgmentsto emphasize that the whole question in that case centredaround the plaintiffs right to* continue the action with respect tohis claim for damages, for which purpose the vendees from himwere held to be unnecessary and the ratio decidendi, therefore inthe case must be thought to fall within that compass.
The dissenting judgment of Grenier J. however is the one thatcauses some problem. He said (at page 121)
'The plaintiff is in this position, now that he has parted withthe dominium to a third party, that he cannot obtain adeclaration of title under any circumstances. I do not thinkthat either section 18 or section 404 is helpful to theplaintiff in the position in which he has placed himself byconveying the property in question to third parties, for nodeclaration of title can be made in this action in favour ofthe purchasers so long as the plaintiff is on the record. Itmay be that the defendants have grounds of defenceagainst the purchasers which cannot be raised in thepresent action, and it would not, ! think be convenient orproper, or indeed right in law, to allow the plaintiff, after hehas once parted with the dominium, to go on and maintainhis action for a declaration of title for a land of whichadmittedly he is no longer the owner. He cannot claimmesne profits because he has alienated the res, and thefructus cannot be allowed to be claimed by him".
Upon that reasoning he directed a dismissal of the plaintiffsaction.
If Grenier J. intended by these words to say that it was notpermissible for the transferees from the plaintiff to come into thecase if they wished to do so, I cannot agree and any suchstatement I think must be treated as obiter for the reason that
such a situation was not present in that case. Nor can I agreethat no declaration of title can be granted in favour of thepurchasers so long as the plaintiff is on the record because in myreading of them the clear terms of section 404 militate againstsuch a view. I do think that section 404 of the Civil ProcedureCode makes express provision for such a course. Section 404reads thus:—
"In other cases of assignment creation, or devolution of anyinterest pending the action, the action may, with the leave ofthe Court, given either with the consent of all parties or afterservice of notice in writing upon them, and hearing their, objections, if any be continued by or against.the person towhom such interest has come, either in addition to or insubstitution for the person from whom it has passed, as thecase may require"
In the case of Silva v. Jayasekera and another (A) Keuneman J.with respect to this section said
'The important and controlling words in my opinion are that'the leave of the Court' must be obtained. I think that putsthe Court in complete control of the case, and vests in theCourt a discretion as to the persons to be admitted asparties plaintiff or defendant"
Keuneman J. also pointed out in the same case that in India,Order 22 Rule 10 is on the same lines as our section 404, andthe position there may therefore usefully be looked at. Chitaley &Rao in their work The Code of Civil Procedure’ 7th Edn (1963)Vol 111 at pages 3416-3417 explain the scope and applicability ofthe rule (Rule 10) thus:—
’The rule is an enabling one. It is based on the principle thatthe trial of a suit cannot be arrested merely by reason of adevolution of the interest of a party in the subject matter ofthe suit: that the person acquiring the interest may continuethe suit with the leave of the Court: but that if he does notchoose to do so the suit may be continued with the originalparty and the person acquiring the interest wilt be bound by.
or can have the benefit of, the decree as the case may be.But this is subject to the rule that when the plaintiff ceasesto have the right and the cause of action therefore lapses,he cannot be allowed to continue the suit".
One finds in that work the following passages which state theeffect of the authorities:—
"Where, however, there are two devolutions, viz one by thedeath of a party {coming under rules 3 and 4) and the otherby a transfer of his interest (Prior to his death), thetransferee has the right to be impleaded under this rule andthe death of the party cannot take away that right" (at page3419)
"As illustrations of 'other cases of assignment, creation or'devolution of interest' falling within this rule may be
mentioned cases of transfer inter vivos"
(at p.3420)
"the 'interest' referred to in Rule 10 is the interest of a
person who was a party to that suit, and it is the transfer ofthe interest of such a person to the applicant that entitleshim to continue the suit under this rule"
(at p.3421)
a transfer inter vivos such as a sale, or any other kindof transfer will come within the rule" (at p.3421}
If authorities be necessary, these passages constitute I thinksufficient authority for what in my understanding the plainlanguage of section 404 of our Code provides.
One other matter requires to be mentioned. The earlier Indianprovision, as in our section 404, was that the suit may with theleave of-the Court be continued by or against the person towhom the interest has passed either in addition to or insubstitution for the person from whom it has passed. The words"in addition to" have disappeared from the present rule as waspointed out by the Privy Council in Manindra Chandra Nanday vRam Kumar (5). It is I think for that reason that the passages Ihave cited above with respect to Rule 10 appear to suggest asubstitution of the purchaser from the plaintiff in the cases underconsideration. Our Code contains these words ‘in addition to',and I think with advantage. It may well be that the issues in thecase demand the presence of the plaintiff whose interests havepassed and one instance that comes to mind is when there is aclajm in reconvention made against the plaintiff by thedefendant. I cannot, having regard to the language of section404 of the Code go along with the view expressed by Grenier J.which I earlier referred to that 'no declaration of title can bemade in the action in favour of the purchasers so long as theplaintiff is bn the record'. I see no impediment, upon a truereading of section 404. to a purchaser of the plaintiff's interestbeing brought in. in addition to the plaintiff and the actioncontinuing to enable such purchaser to get the relief the plaintiffmight, but for his transfer, have got. On that basis the 2ndplaintiff here was clearly entitled to the relief the District Judgegranted.
Since preparing this judgment I have been able to ascertainthat a tike view has been taken by Tambiah J. (with Ratwatte J.agreeing) in this Court in Murugesu v. Gunaratne (6) (See alsoKandasamy v. Meenambikai (7).
Since the 1st plaintiff was not entitled to these reliefs thejudgment of the District Judge is varied so as to allow judgmentas granted by him in favour of the 2nd plaintiff only.
Subject to this variation the appeal is dismissed with costspayable to the 2nd plaintiff-respondent.
vdcnarajah, J. – I agree.Appeal dismissed.