034-SLLR-SLLR-2001-V-3-KEERTHIWANSA-v.-URBAN-COUNCIL-HORANA-AND-3-OOTHERS.pdf
KEERTHIWANSA
v.URBAN COUNCIL HORANA AND 3 OTHERS
COURT OF APPEALJAYASINGHE, J.
JAYAW1CKREMA, J.
A.L.A. 318/98
C. COLOMBO 6169/LMARCH 1.31, 2000
Civil Procedure Code – S.18 – Addition oj a Parly – wider constructionadopted by English Law to be preferred.
The Plaintiff – Respondent – Petitioner filed action seeking a declaration oftitle to the land in question and for an interim injunction preventing theDefendant – Respondent – Respondent (Urban Council) from acquiring anypart of the land for road development. The Court allowed the Land ownersadjoining the road way to be. added as parties on the basis that graveprejudice had been caused to them.
On Leave been sought:
Held :
Originally the petitioner and several other residents gave their writtenconsent to the Defendant Respondent (U.C) to widen the roadwayupto 12 ft (R8). Subsequently the Plaintiff Respondent Petitioner and6 other residents requested the Chairman of the Development Councilto widen the road only upto 10ft (X10).
R2 and X1C are documents affecting land, but they are non – Notarialdocuments.
The matter that the Court has to decide is the validity of documentsR2 and X1C. which deal with the widening of the entirety of the roadand not only regarding the widening of the road at the point adjoiningthe Plaintiff Respondent – Petitioners land. Thus the dispute is notentirely a dispute affecting only the land of the Plaintiff RespondentPetitioner but all other residents of lands adjoining the roadway whohad given consent for the widening of the road.
Therefore widening of the road which is based on R2 is a matterwhich has to be decided amongst signatories to R2 and XIC.
CA
Keerthiwansa v. Urban Council Horana and 3 others
(Jayawickrama, J.)
253
In deciding whether a new party should be allowed under S.18(l)C.RC the wider construction adopted by English Law is to bepreferred.
APPLICATION for Leave to Appeal from the Order of the District Courtof Horana.
Cases referred to :
Banda v. Dharmaratne – 24 NLR 210
Arumugam Coomaraswamy v. Andirls Appuhamy – 1985 2 SLR 110
W. Dayaratne. with Ms. R. Jayawardena for Plaintiff – Petitioner.
Anil Silva for Defendant – Respondent.
Mahanama de Silva fori – 3rd Intervenient Petitioners – Respondents.
Cur. adv. vult.
May 08, 2000.
JAYAWICKRAMA, J.This is a leave to appeal application to set aside the orderdated 09.12.1998 of the learned District Judge of Horanawherein she has allowed the application of the petitioner-respondents to be made parties to the action.
The learned District Judge on 09.12.1998 added thepetitioner – respondents as parties to the action in the DistrictCourt on the basis that grave prejudice had been caused tothem. Her order is as follows:-
"®3 SQssi 6© d ©00 ssg© eSea®tod epcs©OTCDCJ 63603© ©Szrf S<33Q £ffflSc36Sf fig 3)d gftS 3© ©0*3 G3 253<3?. ©02§3eSO 00 Sfizrf ©0 2S30Sc3 03^(9© Z33d^©2jl E>d@."
The learned Counsel for the plaintiff-respondent-petitionersubmitted that the petitioner-respondents cannot seekintervention in the District Court case as it is not necessary toadd them as parties to the action. He contended that thewidening of the road which is the subject matter of thisapplication is exclusively within the powers vested on thedefendant – respondent-respondent Council and the extent ofland which would be acquired from the plaintiff – respondent –
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Sri Lanka Law Reports
120011 3 Sri L.R.
petitioner's land is entirely a dispute affecting only the plaintiff -respondent – petitioner and more particularly the subject matterof this case is restricted only to the plaintiff – respondent -petitioner's land. He further submitted that as the case wasinstituted in the year 1996 and the petitioner – respondentswere aware of the situation but they refrained from interveningin this case for nearly 1 1/2 years and as such they have noright to intervene in this action. The learned Counsel furthercontended that at the time of making the said application forintervention under section 18(1) of the Civil Procedure Codethe defendant-respondent- respondent Council explored thepossibility of a settlement with the plaintiff-respondent-petitioner to widen the said roadway only up to 10 feet, and assuch no prejudice had been caused to the petitioner-respondents and therefore it is not necessary that the petitioner-respondents be added as parties to the action as the partieshave agreed for a settlement of the main dispute.
Under section 18(1) of the Civil Procedure Code "thename of any person who ought to have been joined, whether asplaintiff or defendant, or whose presence before the court maybe necessary in order to enable the court effectually andcompletely to adjudicate upon and settle all the questionsinvolved in that action, be added," as parties. When oneinterprets the above section it appears that, whenever a courtcan see in the action brought before it that the rights of some ofthe parties may or will be probably affected, the court shall havethe power to bring all the parties before it and determine alltheir rights by one trial in order that the costs on litigation maybe diminished as much as possible.
In Banda u. Dharmaratne111 Schneider J held that,
"The policy of the Civil Procedure Code is to avoid amultiplicity of action, and therefore, where the facts brought tothe notice of the court before it has finally disposed of the actionare such that the addition of a person would tend effectually todeal with all the questions involved, the Court should not putdifficulties in the way of parties to the action who seek to addsuch persons, but should stay its hand and afford the party
CA
Keerthlwansa u. Urban Council Horana and, 3 others
(Jayawickrama, J.j
255
seeking to do so an opportunity to add such persons as maybe necessary to finally determine all questions arising in theaction."
In deciding whether the addition of a new party should beallowed under section 18(1) of the Civil Procedure Code thewider construction adopted by English law is to be preferred.Whenever a Court can see in the transaction brought before itthat the rights of one of the parties will or'may be so affectedthat other actions may be brought in respect of that transactionthe court has the power to bring all the parties before it anddetermine the rights of all in one proceeding. It is not necessarythat the evidence on issues raised by the new parties beingbrought in should be exactly the same. It is sufficient if the mainevidence and the main inquiry will be the same. Even if thenarrower construction is adopted a person who has to be boundby the result of the action or has a legal right enforceable byhim against one of the parties to the action which will beaffected by the result of the action should be joined; so alsowhere the question raised by the party seeking to be added isso inextricably mixed with the matters in dispute as to beinseparable from them and the action itself cannot be decidedwithout deciding it, then the addition should be made; if theplaintiff can show that he cannot get effectual and completerelief unless the new party is joined or a defendant can showthat he cannot effectually set up a defence which he desires toset up unless the new party is joined, the addition should beallowed. (Vide Arumugam Coomaraswamy v. AndlrlsAppuhamy121)
The plaintiff-respondent-petitioner filed an action in theDistrict Court seeking a declaration of title to the land morefullydescribed in the schedule to the plaint and for an interiminjunction preventing the defendant-respondent-respondentfrom acquiring any part of the said land for road development.
The defendant-respondent-respondent in para 4 of theanswer marked as X8 has admitted the title of the plaintiff-respondent-petitioner to the land described in the schedule.
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120011 3 Sri L.R.
Therefore the only dispute that the District Court has to decideis as to what extent the widening of the roadway be allowed.
The defendant-respondent-respondent, the Urban Councilof Horana intended to widen the said roadway and the plaintiff-respondent-petitioner and several other residents expressedtheir written consent to the defendant-respondent-respondentto widen the said road way up to 12 feet subject to the conditionthat in view of the said widening severe damages should notbe caused to their lands and buildings. Thereafter theboundaries for the said road widening was defined. The plaintiff-respondent-petitioner and six other residents realised thattheir building standing on their lands would be severely affectedif the said road is widen up to 12 feet and as such by their letterdated 25.06.96 requested the Chairman of the defendant-respondent-respondent council to widen the said road only upto 10 feet. The widening of the said road was to be madeconsequent to the consent letter marked R2. to which all theland owners adjoining this road have given their consent. Thedocument requesting the reduction of the width of the road to10 feet is marked XIC to which also the adjoining land ownershave agreed by placing their signatures to that document. Thepetitioner-respondents who have been added as parties aresignatories to the above mentioned documents marked as R2and XIC. Both these documents are documents affecting landbut they are non-notarial documents. Therefore the validity ofthese documents could be contested in a Court of law in view ofsection 2 of the Prevention of Frauds Ordinance, and theprovisions in Section 52 of the Urban Councils Ordinance.
When one considers the above facts specially the documentsR2 and XIC which are part and parcel of the pleadings it isabundantly clear that the matter that the court has to decide isthe validity of documents R2 and XIC which deal with thewidening of the entirety of the road and not only regarding thewidening of the road at the point adjoining the plaintiff-respondent-petitioner's land. Therefore we are unable to agreewith the contention of the learned Counsel for the plaintiff-respondent-petitioner and the defendant-respondent-
CA
Keerthlwansa u. Urban Council Horana and ,3 others
(Jayawlckrama, J.)
257
respondent that the dispute is entirely a dispute affecting onlythe land of the plaintiff-respondent-petitioner. In fact thepleadings in this case specifically state that not only plaintiff-respondent-petitioner but all the other residents of landsadjoining the roadway have given their consent for the wideningof the road. Therefore the widening of the road which is .basedon R2 is a matter which has to be decided among the signatoriesto R2 and XIC. Hence the petitioner-respondents whose namesappears as 6, 7, and 8 in R2 and as 8. 9'and 10 in XIC asparties to these documents, their presence before the Court maybe necessary in order to enable the Court effectually andcompletely to adjudicate upon and settle all the questionsinvolved in that action.
As title to the land is admitted by the defendant the onlyquestion the Court has to decide is the width of the road inrelation to R2 and XIC and therefore the petitioner-respondentshave necessarily to be made parties to this action. Although R2states that it is a document transferring title (epQSo esQdo&da>7sics) it has not been notarially executed. Further the Courtmay have to decide whether R2 is a "free gift of land" in terms ofsections 52 of the Urban Council Ordinance.
For the above reasons, we hold that the presence of thepetitioner-respondents before the Court is necessary in orderto enable the Court effectually and completely to adjudicate uponand settle sill the questions involved in the widening of theaforesaid road. Although the learned District Judge has notstated the facts and reasons comprehensively in her order interms of Section 18(2) of the Civil Procedure Code, she has cometo a correct conclusion.
In view of the above reasons we affirm the order of thelearned District Judge dated 09.03.98 and dismiss the leave toappeal application with costs fixed at Rs. 2500/= payable bythe plaintiff-respondent-petitioner to the petitioner-respondents.
JAYASINGHE, J. – I agree.
Application dismissed