MACKIE & SONS v. MACKIE & ANOTHER

050-SLLR-SLLR-1999-V-3-MACKIE-SONS-v.-MACKIE-ANOTHER.pdf


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Sri Lanka Law Reports
[1999] 3 Sri L.R.
MACKIE & SONS
v.MACKIE & ANOTHER
COURT OF APPEAL.
DE SILVA, J„JAYAWICKREMA, J.
CALA NO. 158/90.
DC COLOMBO NO. 15619/MB.OCTOBER 29, 1998.NOVEMBER 30, 1998.
JULY 14, 1999.
Civil Procedure Code S. 14, S. 18 – Addition of a party.
The plaintiff-respondent filed action seeking a declaration that Mortgage BondNo. 88 is null and void and the properly is not subject to mortgage. The defendant-petitioner prayed for the rectification of the Bond. The trial was fixed for 26.1.90,the defendant moved to add the petitioner as a party, which was allowed by theDistrict Court.
It was contended that, the addition would result in misjoinder.
Held:
(1)S.14
S.18
deals with a situation where the plaintiff institutes an actionagainst persons who are liable to be sued as defendants.
deals with a situation where the presence of any party may benecessary to effectually and completely adjudicate upon andsettle all questions involved in the action.
(2) If the petitioner is not added as a party a separate action will have tobe filed against the petitioner and the plaintiff with respect to the very samerelief, viz the rectification of the Mortgage Bond. Once the petitioner isadded the question whether the Mortgage Bond should be rectified or notcan be determined once and for all in one action without having to bringa separate action.
APPLICATION for Leave to Appeal from the Order of the District Court, Colombo.
CA
Mackie & Sons v. Mackie & Another (De Silva, J.)
387
Cases referred to:
Arumugam Coomaraswamy v. Andris Appuhamy and Others – [1985]2 Sri L.R. 219.
Chartered Bank v. L. N. de Silva – 67 NLR 135.
Faiz Musthapha, PC with Harsha Ameresekera for 2nd defendant-petitioner.Chula de Silva,, PC with M. Gunasekera and M. Mahroof for respondents.
Cur. adv. vult.
September 23, 1999.
DE SILVA, J.
This is an appeal from an order made by the learned District Judgepermitting an application by the defendant-respondent (hereinafterreferred to as defendant) to add the petitioner as a party to this action.
The relevant facts are as follows : The plaintiff-respondent (here-inafter referred to as the plaintiff) filed action seeking a declarationthat Mortgage Bond No. 88 is null and void and that the propertyreferred to therein is not subject to any mortgage and for an ordercancelling and setting aside the registration of the said Bond.
The position taken up by the plaintiff was that the sum referredto in the bond was never lent and advanced to her by the defendantand that there is no debt due from the plaintiff to the defendant.
The plaintiff alleged that the defendant company granted financialfacilities to the party sought to be added, namely H. M. S. MackieSons (Pvt) Ltd., and the said company received the said financialfacilities.
The defendant's position as set out in the answer is that thecompany sought to be added is a private company, owned, controlledand managed by the plaintiff and her immediate members of the family.
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The defendant has contended that the petitioner company actingthrough its directors, inclusive of the plaintiff requested financial facilitiesfrom the defendant and offered as security the said premises andthat the plaintiff executed the said Mortgage Bond as security formonies to be lent and advanced to the said company.
The defendant has used a standard printed Bond and the formathas not been changed to state that the security by way of mortgageis being offered for financial facilities given to the company and notto the plaintiff.
In the answer the defendant has prayed to rectify the errors andhas also stated that once the rectification is effected in additionto the plaintiff the defendant will be entitled to sue the petitionercompany.
Issues were raised on 06.10.1989 and trial was fixed for 26.01.1990.Thereafter, the defendant moved to add the petitioner, as a party tothe action. Objection was taken up and the learned District Judgeby his order dated 12.10.1990 allowed the application to add thepetitioner company as a party. This appeal is against the said orderof the learned District Judge.
Counsel for the appellant submitted that the order of the learnedDistrict Judge is erroneous for two reasons, namely –
that the instant case does not come within the “broaderprinciple^1 regarding addition of parties enunciated in ArumugamCoomaraswamy's case(1).
in any event as no relief has been claimed against thepresent petitioner, the addition of the petitioner would resultin misjoinder.
Counsel submitted that section 14 of the Civil Procedure Codepermits a joinder only of defendants in respect of whom a right torelief is alleged to exist whether jointly, severally or in the alternativein respect of the same cause of action. It was the contention of the
CAMackie & Sons v. Mackie & Another (De Silva, J.)389
counsel that what is sought in the instant case is a rectification ofthe Mortgage Bond which is a contract entered into between theplaintiff and the defendant. In support of this contention counsel forthe petitioner cited the decision Chartered Bank v. L. N. de SilvaPK
It is to be noted that section 14 deals with a situation where theplaintiff institutes an action against persons who are liable to be suedas defendants. This is clear from the scheme of the Civil ProcedureCode and the wordings of section 14.
Section 18 of the Civil Procedure Code deals with a wider situation.It deals with the situation where the presence of any party may benecessary to effectually and completely adjudicate upon and settleall questions involved in the action.
The facts in the Chartered Bank case (supra) have no similarityto the facts of the present case. In that case, a guarantor who hadsettled the liability of the defendant to a Bank filed action against thedebtor. The question that arose for decision was whether the Bankshould be made a defendant to completely and effectively adjudicate.upon all matters involved. The relief sought did not affect the partysought to be added.
In Arumugam Coomaraswamy v. Andiris Appuhamy (supra) at 219the Supreme Court laid down several situations in which a party isliable to be added.
The head note reads as follows: "In deciding whether the additionof a new party should be allowed under section 18 (1) of the CivilProcedure Code the wider construction adopted by English courts isto be preferred. Whenever a court can see in the transaction broughtbefore it that the rights of one of the parties will or may be so affectedthat other actions may be brought in respect of that transaction thecourt has the power to bring all the parties before it and determinethe rights of all in one proceeding. It is not necesary that the evidenceon issues raised by the new parties being brought in should be exactlythe same. It is sufficient if the main evidence and the main inquiry
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will be the same. Even if the narrower construction is adopted a personwho has to be bound by the result of the action, or has a legal rightenforceable by him against one of the parties to the action which willbe affected by the result of the action should be joined; so also wherethe question raised by the party seeking to be added is so inextricablymixed with the matters in dispute as to be inseparable from themand the action itself cannot be decided without deciding it, then theaddition should be made; if the plaintiff can show that he cannot geteffectual and complete relief unless the new party is joined or adefendant can show that he cannot effectually set up a defence whichhe desires to set up unless the new party is joined, the addition shouldbe allowed".
In the instant case if the petitioner is not added as a party thena separate action will have to be filed against the petitioner and theplaintiff with respect to the very same relief, namely the rectificationof the Mortgage Bond. Once the petitioner is added as a party, thequestion whether the Mortgage Bond should be rectified or not canbe determined once and for all in one action without having to bringa separate action.
In these circumstances we see no reason to interfere with the orderof the learned District Judge. This appeal is dismissed with costs.
JAYAWICKREMA, J. – I agree.
Appeal dismissed.