022-SLLR-SLLR-2003-V-2-KULARATNE-v.-SAMARAWICKREMA-AND-ANOTHER.pdf
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[20031 2 Sri L.R
KULARATNE
v
SAMARAWICKREMA AND ANOTHER
COURT OF APPEALAMARATUNGA, J.
CALA 35/2000
D.C. COLOMBO L/19507
MARCH 5, 2003
Civil Procedure Code, section 18- Addition of a party – Vendor undertaking towarrant and defend title – Express covenant – Is there a necessity to givenotice through court? – Duty to warrant against eviction by superior title.
The plaintiff-respondent filed action seeking declaration of title and an order toplace him in peaceful and undisturbed possession. The defendant-petitionerdenied the claim of the plaintiff, and made an application to add his vendorunder section 18 as a party to the action. He did not object, but the plaintiffobjected. The trial court held with the plaintiff.
Held:
It is not an implied condition in the contract of sale that a vendor shouldmake a good title, but he must give vacant possession to the purchaser.
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If he fails to do so, if after delivery the purchaser is evicted by superiortitle the vendor is liable in damages.
The duty is to warrant against eviction by superior title.
Pee Amaratunga, J.
“When there is an express covenant in a deed to warrant and defend titleand if the purchaser is sued by another party claiming title, the purchas-er should give notice of the action to his vendor to enable him to performhis obligation to defend the purchaser's title. There is no necessity togive notice through court.
It is desirable therefore that no impediment unless it is absolutely nec-essary should be allowed to stand in the way of his intervening.
Per Amaratunga, J.
“When a relevant case is cited to a judge, it is his duty to carefully consider itand decide whether the law laid down in that case is applicable to the casebefore him; if he decides that, that case has no application to the case beforehim, an appellate court would like to see his reasons on record, unless it isobvious that the case has no relevance to the case at all.”
APPLICATION for leave to appeal with leave being granted.
Cases referred to:
Weerawardhana v Ratnaike (1922) 22 NLR 219
Silva v Daniel Ram (1872-1876) 62
Suse Appu v Attapatu Kankanama 5 SCC 213, 22 NLR 221
Menika v Adacappa Chetti (1915) 17 NLR 93
Jinadasa v Duraya (1918) 20 NLR 158
6 Arumugam Coomaraswamy v Andiris Appuhamy (1985) 2 SriLR 2197. Perera v Lokuge (2000) BLR 8 (SC)
Rohan Sahabandu for defendant-petitionerAsoka Gunasekera for respondent-respondentPlaintiff-respondent – respondent absent and unrepresented
Cur.adv.vult.
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October 31,2003AMARATUNGA, J.
This is an appeal with leave granted by this court. The plain-tiff-respondent (hereinafter called the plaintiff) filed action in theDistrict Court of Kandy against the defendant-petitioner (hereinaftercalled the defendant) seeking declaration of title to the landdescribed in the second schedule to the plaint and for an order toplace the plaintiff in peaceful and undisputed possession of the saidland. In his plaint the plaintiff has set out the source of his title tothat land.
The defendant filed answer denying the claim of the plaintiffand set out his title which was distinct and different from the titlepleaded by the plaintiff. According to the answer of the defendant,his immediate predecessor in title was L.R. Senaratna (the respon-dent-respondent who will hereafter be referred to as the respon-dent) from whom he purchased this property, by deed No. 38509dated 29/11/1996, for valuable consideration. By the said deed therespondent has undertaken to warrant and defend the title con-veyed by him to the defendant.
It is not an implied condition in the contract of sale that a ven-dor should make a good title. But he must give vacant possessionto the purchaser. If he fails to do so, if after delivery the purchaseris evicted by superior title the vendor is liable in damages. R.W. Lee-An Introduction to Roman Dutch Law 1953 5th Edition p. 294. Theduty is to warrant against eviction by superior title. When there isan express covenant in a deed to warrant and defend title and if thepurchaser is sued by another party claiming title, the purchasershould give notice of the-action to his vendor to enable him to per-form his obligation to defend the purchaser’s title. There is nonecessity to give notice through Court, but in this case the defen-dant has issued notice to his vendor, respondent Senaratna,through Court and on such notice, the latter has appeared in Court.Vide journal entry No. 14 of 11/8/1999.
The defendant has then made an application to Court to addrespondent – Senaratna under section 18 of the Civil ProcedureCode as a party to the action. The respondent has not objected to
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this application but the plaintiff has objected to it. After consideringthe objections of the plaintiff and the submissions of both partiesthe learned Judge has refused the defendant’s application to addthe respondent as a party. This appeal, with leave of this Court, isagainst that order.
The reason given by the learned Judge for refusing the applhcation of the defendant was that the defendant has failed to satisfyCourt as to why it was necessary to add the respondent as a party.The learned Judge has stated that if the defendant’s desire is to getthe respondent to defend the title conveyed by him, the defendantcould call the respondent as a witness. The defendant has submit-ted that if his title gets defeated in the action the respondent wouldbecome liable to be sued in damages and for that reason therespondent should be added as a party. The learned Judge hasstated that that was not a good reason to add the respondent as aparty to the action under section 18 of the Civil Procedure Code.
This identical question has been considered and decided in1920 in the case of Weerawardane v Ratnaike1. In that case thedefendant sold and conveyed a land to the plaintiff. Third partiesbrought an action to get the land partitioned among themselves.The plaintiff intervened in the action and gave notice to the defen-dant and called upon him to warrant and defend title. The defen-dant did not get himself added as a party to the action but only gaveevidence as a witness for the plaintiff. The plaintiff failed to estab-lish his title and the third parties were declared entitled to the land.The plaintiff then sued the defendant for damages, the failing towarrant and defend title he has conveyed. The defendant’s defencewas that he was not at liberty to intervene in the action, as a parti-tion action could be among co-owners only and therefore he wasnot liable for the plaintiff’s eviction.
This defence was rejected by Scheneider A.J. in the follow-ing words. “In my opinion, the defence is unsustainable. In practicea vendor of any of the parties to an action is allowed to intervene ina partition action for the purpose of warranting and defending thetitle he has conveyed. There is nothing I can see against the prac-tice. Such intervention cannot create confusion or complexity. Theintervenient’s interests are identicle with those of the purchaser
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who is already a party. His intervention would not therefore, bringinto the action any new element or interest. On the other hand, itseems to me expedient that such intervention should be allowed. Avendor has a right on receiving notice to make himself a party to theaction, in order, as Voet 21.2.20 puts it, to ‘prevent collusion’ It isdesirable, therefore, that no impediment, unless it is absolutelynecessary, should be allowed to stand in the way of his intervening.
The practice received sanction in the provisions of section 18 of theCivil Procedure Code and it has been recognized by this Court 8Csince 1872. In this connection I might mention the cases of Silva vDaniel Rarrfi and Suse Appu v Atapattu Kankanamar3 at 221,emphasis added).
A photocopy of the entire passage I have cited above hadbeen incorporated in the written submissions tendered to theDistrict Court on behalf of the defendant, but the learned Judge hasmerely brushed it aside with the remark that the decision should beconsidered and taken in the light of the circumstances of that case.
It is to be borne in mind that when a relevant case is cited to aJudge, it is his duty to carefully consider it and decide whether the 801law laid down in that case is applicable to the issue before him. Ifhe decides that that case has no application to the issue beforehim, an appellate court would like to see his reasons on record,unless it is obvious that the case has no relevance to the issue atall.
In Menika v Adacappa Chetty* Pereira, J. has laid down inthe following words the duty of a vendor who receives notice thathis vendee’s title is being challenged in an action. “On receipt ofthat notice it (is) clearly the duty of the (vendor) to apply to theCourt to have himself added as a party to the case, or otherwise 100render to the defendants in that case all the help that it (is) withinhis power to render, and defend the title of his vendee’s againstattack made on it by the plaintiffs”. Those words were cited withapproval by De Sampayo J. in Weerawardana v Ratnaike (supra).
In Jinadasa v Duraya 5 De Sampayo, J. has stated that “the objectof the notice was to enable the vendor to intervene in the action andundertake the defence….or otherwise to assist in the litigation.”
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The cases cited above clearly indicate that a vendor, whohas received notice of an action where the title conveyed by him toa party is being challenged, has the right to intervene as a party to nosuch action. He has a direct interest in the result of the action. If thevendee’s title is defeated the vendor may become liable to be suedfor damages or for the return of the purchase price. If he is allowedto intervene and successfully defend the title conveyed by him hecan avoid an action for damages. One of the reasons for the addi-tion of parties is the desire to avoid a multiplicity of actions. VideArumugam Coomaraswamy v Andiris Appuhamy6; Perera vLokuge7. The learned Judge has failed to consider this aspect.
In this case the respondent has not made an application tobe added as a party. But he has stated that he had no objection to 120the application to add him as a party. If he is added as a party heis entitled to rights available to a party to an action. He can suggestissues, summon witness, lead evidence, cross examine witnessesand address and make submissions to Court. Those are the advan-tages the defendant will gain by adding the respondent vendor asa party. The learned Judge has not taken those matters into con-sideration when he concluded that without adding the respondentas a party, the defendant could call him as a witness. The learnedJudge has failed to consider the correct legal principles relevant tothe application of the defendant and his decision is therefore liable 130to be set aside. I allow the appeal, set aside the order refusing toadd the respondent vendor as a party to the action and direct thelearned Judge to add L.R. Senaratna as a party to the action andproceed with the case according to law. The defendant is entitled tocosts of this appeal payable by the plaintiff-respondent.
Appeal allowed; District Court directedto add respondent.