090-NLR-NLR-V-66-G.-J.-SIRIWARDANE-Appellant-and-AMUNUGAMA-GUNARATHANA-THERO-Respondent.pdf
SAN'S ONI, J.— Siriwardane v. Amunugama Gunarathana Thero
383
Present: Sansoni, J., and G. P. A. Silva, J.
G. J. SIRIWARDANE, Appellant, and AMUNUGAMAGUNARATHANA THERO, Respondent
S. C. 2411961—D. C. Kandy, 5103/L
Substituted and added plaintiffs—Scope of a. 13 of Civil Procedure Code.
Section 13 of the Civil Procedure Code which authorises the court to permita person to be substituted or added as plaintiff in specified circumstances cannotbe employed to introduce a new “matter in dispute” involving an entirelynew cause of action which is inconsistent with the cause of action which waspleaded between the original plaintiff and the defendant.
A.PPEAL from an order of the District Court, Kandy.T. B. Dissanayake, for Defendant-Appellant.
No appearance for Plaintiff – Respondent.
Cur. adv. wit.
December 14, 1962. Sanboint, J.—
This is an action filed by a Plaintiff to have himself declared entitled,as Adhikari Bhikkshu of Vivekaramaya in Dodanwala, to a certain land,and to have the Defendant ejected therefrom, and for damages.
According to the plaint, one Arnolishamy was the former owner of th eland and he donated it to the Plaintiff to be held and possessed by thelatter as Adhikari Bhikkshu of Vivekaramaya. No deed of donationwas executed. After Arnolishamy’s death, bis widow as Executrix ofhis estate donated the land to the Plaintiff as Adhikari Bhikkshu of thesaid Vivekaramaya. The Defendant is said to have disputed the Plain-tiff’s title to a portion of the land, and to be in wrongful possession- ofthat portion. The Plaintiff accordingly claimed a declaration of titlein his favour.
The Defendant denied the averments in the plaint and the title pleadedby the Plaintiff, and olaimed that he was entitled to an undivided 1/3share of a land which he described in his answer; the land referred toin the answer is probably the same land as is described in the plaint.
The case went to trial, and in the course of giving evidence the Plaintiffmade out what I can only term an entirely new case. In his evidence hestated that the land which be claimed had been dedicated by Arnolishamyto the Sri Paramananda Maha Vihara in Galle. He further stated thatthe present Viharadhipathy of that Vihara is Kamburugama Kusalagnana
384 SANSONI, J.—Siriwardane v. Amunugama Ounarathana Thero
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Nayake Thero, and that the land in dispute is a temporality of the MahaVihara. The effect of these admissions made by him was that, if theywere true, the Plaintiff’s action to be declared entitled to the land wouldfail.
The next development in the case was an application by the Plaintiffto add Kusalagnana Nayake Thero of Maha Vihara, Galle, as a co-Plaintiff. The Defendant objected on the ground that the issue of pres-cription raised by him would be prejudiced, and also because Section 13of the Civil Procedure Code has no application to the facts of the case.Section 13 would apply only if it is necessary “ for the determinationof the real matter in dispute ” that another Plaintiff should be added ;the Plaintiff would also have to show that the action was brought by himalone through a bona fide mistake’ The learned District Judge allowedthe application of the Plaintiff but in my view this order cannot beupheld.
If the new party were allowed to be added as a Plaintiff, an entirelynew case will come into being ; the original Plaintiff would in effect dropout on the ground that he has no right or title to the land, and a new" matter in dispute ” would arise between the Viharadhipathy of theMaha Vihara and the Defendant. The new dispute will involve anentirely new cause of action which is inconsistent with the old cause ofaction which was pleaded between the original Plaintiff and the Defen-dant. The Defendant would have to fight a case based on a completelynew title put forward by the added Plaintiff.
On the original plaint, the only person who could have sued on thecause of action pleaded and the title set out was the Plaintiff himself.The party proposed to be added “ is not necessary to supplement andcomplete the right of the Plaintiff to sue in respect ot the cause of actionaverred, nor is he necessary for the final determination of any of thematters in dispute between him and the defendant ”, if I may quotefrom the judgment of Garvin J. in Raman Chetty v. Shawe1. If thenew Plaintiff were to be added, the matter in dispute becomes an entirelynew one. Instead of a donation to the Plaintiff being the matter to beestablished, it will be whether there was a dedication to the Maha Vihara.Seotion 13 was never intended to be used in this way.
I would therefore allow the appeal and direct that the notion asoriginally framed should proceed. The Defendant-Appellant will beentitled to the costs of the inquiry in the Court below and of thisappeal.
Silva, J.—I agree.
1 (1931) 33 N.L.R. 16 at 18.
Appeal (Mowed.