020-NLR-NLR-V-01-MEIDEEN-v.-BANDA-et-al.-WALATAPPA-CHETTY-Claimant.pdf
( 51 )
MEIDEEN v. BANDA et al.
WALATAPPA CHETTY, Claimant.
D. C., Kurunigala, 792.
Civil Procedure Code, 1.18—Application to be made added party—Diversity ofinterest between plaintiff and applicant—Interpleader—Duty of ColonialCourts to follow decisions of Court of Appeal on Imperial Statutes, wheresuch Statutes are identical with Colonial Statutes.
Section 18 of the Civil Procedure Code corresponds with the languageof Buie 11, Order XVI., of the Supreme Court of England, and in theinterpretation of that section effect must be given to the principle that,wherever a Court can see in the transactions brought before it thatthe rights of some of the parties may or will be probably affected, sothat under the former system of law there might have been severalactions brought in respect of the same transaction, the Court shall havepower to bring all the parties before it and determine all their rightsby one trial, in order that the cost of litigation may be diminished asmuch as possible.
If the interest of the person applying to be added party is adverse toand independent of the plaintiff’s, the defendants might interpleadand retire, leaving the deposit to be contested between the two rivalclaimants, or the applicant should be added a defendant, if added at all,and should put in a defence and counter-claim to the sum in deposit.
When the provisions of a Colonial Statute are identical with thoseof an English Statute, the Colonial Courts should follow the decisions ofthe Court of Appeal on the Imperial Statute.
TN this case the plaintiff snedthe defendants to recover the snmof Rs. 456, said to be due by them upon their mortgage bondexecuted in favour of one Fakir Meideen, who by deed hadassigned all his interest therein to the plaintiff.
Summons having been duly served bn the defendants, the firstand third defendants appeared, and produced to the Court a receiptfor Rs. 120 purporting to be under the hands of Fakir Meideen, theobligee, and admitted their indebtedness as regards the balance.
On the same day, one Walatappa Chetty appeared and claimedthe whole of the amount due on the mortgage bond Bued upon, byright of purchase at a Fiscal’s sale held in execution of a writ suedout against Pakir Meideen and another person, whereat the Fiscalsold all the right, title, and interest of Pakir Meideen in and tothe said bond. The claimant prayed that his claim may beinquired into, that the deed of assignment upon which plaintiffrested his case may be declared null and void, and that theclaimant may be held entitled to the amount payable on themortgage bond. Filing this application supported by an affidavit,the applicant moved to be added as party plaintiff.
The District Judge postponed judgment as regards the first andthird defendants to a day on which he desired the case to be fixed
( 52 )
for ex parte trial as against the absent defendants, and he allowedapplicant's motion also to stand over for that day with notice toplaintiff. On the 24th April, 1894, the District Judge entereddecree nisi against all the defendants in favour of plaintiff for theamountclaimedlessRs. 120, by consent against the first and thirddefendants and by default against the second and fourth defendants.
The applicant’s motion to be made added plaintiff was disposedof when plaintiff moved (on the 4th June) that the decree nisialready entered be made absolute. The District Judge’s orderwas as follows:—“ After reading the application and affidavit of“ Walatappa Ghetty, I refuse to make the decree nisi absolute. I“ am of opinion that the presence of Walatappa Ghetty before the“ Court is necessary, in order that all the questions in the action“ may be completely and effectually settled. I direct, therefore,“ under the 18th section of the Civil Procedure Code, that the name“ of Walatappa Chetty be added as plaintiff.”
On appeal against thiB order—
Sampayo, for plaintiff appellant.
Domhorst, for applicant respondent.
Cur. adv. vult.
On the 31st January, 1895, the Supreme Court varied the orderof the Court below, by allowing Walatappa Chetty to be added asa party defendant in the action.
Withers, J.—
In this action four persons are sued for a debt under a bondwhich has been assigned to the plaintiff by the obligee.
On the 8th of March, 1894, the day fixed in the summons forappearance and answer, the first and third defendants appearedand admitted their indebtedness under the bond in all but a sumof Rs. 120, which they said they had paid, and which plaintiffacknowledged he had received.
Notwithstanding service of summons, neither the second northe fourth defendants appeared.
On that day, one Walatappa Chetty applied to the Court for anorder to be added as party plaintiff in this action, on the groundthat the bond debt of the defendants to the original obligee, oneS. P. Pakir Meideen, had been duly assigned to him by the Fiscalafter sale thereof in execution of a judgment against the saidS. P. Pakir Meideen. The District Judge directed the applicant’sProctor to give the plaintiff notice of his claim and postponedadjudication in the case and in the matter of the application forone month, within which time the two defendants who had
C 53 )
appeared undertook to deposit in Court the balance of what wasdne by them under the assigned bond. The journal entries showthat, on the 9th of April following, none of the parties nor theapplicant was present in person or by Proctor except the plaintiff,who was present by his Proctor.
Proceedings were adjourned to the 24th of April, on which daythere was an ex parte trial of the action as against the second andfourth defendants. At the conclusion of the trial, a decree nisi wasentered for the plaintiff against these parties. Notice of thisdecree was issued, returnable the 21st of May.
On that day, according to the minutes, the second and fourthdefendants failed to appear to show cause against the decree nisibeing made absolute. On that day, too, the plaintiff and the appli-cant were present by their respective Proctors, and according to theminutes it would appear that the applicant had caused notice ofhis application to be served not only on the plaintiff as directed,but also, and very properly, on the four defendants in this action,and further on the parties, including the said S. P. Pakir Meideen,against whom he had obtained the judgment in execution of whichthe bond debt had been seized and sold and purchased by theapplicant.
The case was not taken up that day, but adjourned to the 4thJune following.
In the meantime, on the 29th of May, the applicant, with theconsent of plaintiff’s Proctor, moved to file an additional list ofdocuments and witnesses, and this motion was allowed.
On the 4th of June, plaintiff’s Proctor moved the Court to makethe decree nisi against the second and fourth defendants absolute,and besides doing that, this Proctor, without any distinct motionaddressed to the subject, contended “ that the applicant had no“ locus standi as regards this action in its present stage.”
Thereupon the District Judge made the order appealed from,and it runs as follows :—
“After reading the application and affidavit of Walatappa“Chetty, I refuse to make the decree nisi absolute. I am of“opinion that the presence of Walatappa Chetty before the Court“is necessary, in order that all the questions in the action may be“ completely and effectually settled. 1 direct, therefore, under the“18th section of the Civil Procedure Code, that the name of“Walatappa Chetty be added as plaintiff.”
Such are the facts of the case, and the question for us to decideis, whether the applicant should be added as a party underthe 18th section of our Civil Procedure Code. As it cannotbe uiged for a moment that the name of the applicant ought
( M )
to hare boon originally joined as plaintiff or defendant, the onlyquestion is,—Is the applicant one whose presence is necessaryin order to enable the Court effectually and completely to adjudi-cate upon and settle all the questions involved in the action ?
Now, the language of the 18th section of onr Civil ProcedureCode corresponds with the language of Rule 11, Order XVI., of theSupreme Court of England, and this being so, I take it that onprinciple we are bound to follow the decisions of the High Courtof Appeal on questions arising out of the rules of the SupremeCourt in England, conformably to the judgment of my Lords ofthe Privy Council in the case of Trimble v. Hill, reportedin 49 L. «/., Privy Council, p. 49. 'The head-note of it is :“ Where the provisions of a Colonial Statute are identical with“ those of an English Statute, the Colonial Courts should follow“ the decisions of the Court of Appeal on the Imperial Statute.”I therefore propose to take for my guidance in this matter theintroductory part of the judgment of my Lord Esher, M.R., inthe case of Byrne v. Brown, reported in 58 L. J., Queen's Bench,p. 411. His lordship observes:—
“ It seems to me to be the fundamental principle and one of the“ chief objects of the Judicature Acts that, wherever a Court can“ see in the transaction brought before it that the rights of some“ of the parties may, or probably will, be affected, so that under the“former system of law there might have been several actions“ brought in respect of the same transaction, the Court shall have“ power to bring all the parties before it and determine all their“ rights by one trial.
“The evidence on the issues raised by new parties being“ brought in need not be exactly the same. It will be enough if“ the main part of the evidence or of the inquiry will be the“ same, and the Court has power to bring all the parties before it“ and to determine the matter in one action.
“Another great principle of the Judicature Acts was to dimi-“ nish, if possible, the cost of litigation. The Court ought, there-“ fore, to construe these Acts as largely as it can, in order to carry“ out, as far as possible, those objects to which I have referred.”
Applying these principles to this case, can it be said that thiscase is touched by them ?
It is clear that the plaintiff and the applicant have no commu-nity of interest, and that there can be no trial as to what share inthe chose of action each is entitled to. Their claims are adverseand independent of each other : one claims as the assignee ofMeideen volens, the other as an assign in law of Meideen invitus.
1 assume that this is a case where the defendants might have
( 55 )
interpleaded and retired from the field, leaving their depoeit to becontested between the two rival claimants.
The defendants, however, have not taken this course, and theyhave raised no objections to the intervention of Walatappa.
I can find no precedent of a case in the English Conrts wherea person who might have been brought into Court on an inter-pleader has been added as a party at his own instance.
In a note at page 416 of O'Kinealy on the Indian Civil ProcedureCode (3rd edition), it is said, “ When a suit has been brought“against a person before instituting the interpleader suit, he“ should endeavour to have the other claimants made parties under“ section 32” [which corresponds to the section of our Code now inquestion], “ so as to have the whole question disposed of in the one“ suit.” The author, as far as I can discover, cites no authority insupport of this proposition ; on the contrary, he refers to certainIndian cases which in his eyes appear to militate against it.
Reverting, however, to the principles laid down by the Masterof the Rolls, it seems to me that the main part of the inquiry intodefendant’s obligation will be whether Meideen had any interestin this chose of action at the time he purported to assign it to theplaintiff, or had power then to dispose of it. If he had, plaintiffwill be entitled to judgment. If he had not, and if the applicanthad duly acquired it at a judicial auction, the latter will beentitled to the deposit.
The cause of action, viz., defendants’ indebtedness on the bond,is common to both plaintiff and the applicant, and the question atissue will be, Who has the better title to recover this debt P Thejudgment will bind them once and for all.
The order cannot of course stand as it is. The numerous casescited at page 366 of the Annual Practice, 1894, go to show that if aperson not a party seeks to intervene under Rule 11, Order XVI., heshould apply to be made a defendant, and state the relief whichhe seeks. The applicant here should be added as a defendant, ifadded at all, and should put in a defence and a counter-claim tothe sum in deposit.
I have been much exercised by this question, but the conclusionI come to is that the applicant, Walatappa, should be allowed to beadded as a party defendant in this action, and I would so decree.
Brownb, J.—
When first and third defendants were served with the summonsin this action they appeared and produced a receipt to them byplaintiff for a part payment of Rs. 120 which plaintiff admitted,and, says the record, “ admit that they owe the balance on the
( 56 )
bond, bat a Chetty has told them not to pay plaintiff.” The nextmoment thereafter Mr. Modder filed a proxy of Walatappa Chetty,and applied that his client be added as party plaintiff. He filedaffidavit of Walatappa having acquired the original obligee’s right,title, and interest by purchase, and declined to admit the receiptproduced. The defendants present undertook to deposit thebalance which the Court officer should compute to be due.
It does not appear that this computation was ever made, or thatthese defendants were ever required to deposit any sum.
Had defendants been the party applying for an order to jointhe applicant as an added party, it would have been necessary thatthe deposit should have been made forthwith ere the matterproceeded further; but as the application was by the would-beadded party, the order had not to be enforced unless the applica-tion were ultimately allowed, which, pending the result of thisappeal, has not yet occurred. All that has since been done has beento enter a decree nisi against the other defendants and to discussWalatappa’s application on notice to the plaintiff. After suchdiscussion the learned District Judge made order allowing it, andplaintiff has appealed.
I agree in the view of my brother Withers, and for the reasonsgiven by him, that the order of the learned District Judge shouldbe affirmed as-directed by him. I would, however, have suggestedthat in view of the special provision made in the second paragraphof section 18 of our Code, Walatappa Chetty should be designated“added party” only, without its being stated that he is added as aplaintiff or defendant. This provision is not to be found in secticn32 of the Indian Civil Procedure Code, or in Order XYI., Rule 11, ofthe Judicature Rules of 1883. In effect it would keep this newparty in the suit always and entirely distinguished from the originalparties so as to avoid confusion of him with either or any of themor their rights or claims. As, however, the rest of the Court affirmthe order in this respect I will not dissent therefrom, so that thepractice may be settled.
In both the Indian and our own Code, the provisions and subjectsof section 18 (Indian, 32) were kept in view when permittinginterpleader procedure by section 628 (Indian, 470), when it wasthere provided that, if any action is pending in which the rightsof all parties can properly be decided, an interpleader action shouldnot be instituted, and I presume it is this proviso which is theauthority for O’Kinealy’s dictum quoted by my brother Withers.Of course, as the writer is careful by reference to certain decisionsto remind his reader, there is no provision in the Indian (nor theCeylon) Code similar to that in the Judicature Rules (1883),
( 57 )
Order XVI., Rule 48, whereby a defendant may obtain leave to havejoined one against whom he claims to be entitled to contributionor indemnity—the role whereunder were made the orders in theSwansea Shipping Company's case (1 L.R., Q.B. 644) and Bowerv. Hartley (ib. 652) cited by Mr. Dornhorst in argument. Oncethe applicant notified to them his claim, thereafter promptlyappeared in Court and repeated it there, the position of affairs moreclosely resembled that in Reading v. School Board for London(16 L.R., Q.B. 686), where defendants, with notice of assignmentto claimant by plaintiff of the moneys due him by them, movedand were allowed to interplead on payment of their debt, and issuewas framed to determine the rights of the plaintiff and claimant.
It is to me clear that were it not for this procedure thedefendant would be exposed to two actions on the bond, and that,if judgment went against him in both, he might either be damni-fied thereby by having to satisfy the double decree, or mightpossibly be driven to bring a third action if such a course wereopen to him. It is unreasonable to require him in two separateactions to plead the right or claim of the plaintiff in each suitto his trouble and costs, when by lodgment of his admitted debtin Court he stands absolved from all litigation.
Lawrie, a.C J.—
In this point of practice I wish to agree with the rest of theCourt, but I cannot refrain from Baying that I have difficulty inseeing what right Walatappa Chetty has to interfere in this action.
Having, as he alleges, a complete and preferable right as creditorin this bond, he can bring action on it whenever he likes. He hasnot yet done so. The plaintiff (who also alleges a complete andpreferable right) was more prompt; he lost no time in bringingaction againBt the debtors; these debtors have not contested theplaintiff’s right nor their liability to him; indeed they paid part ofthe debt before action. Between the parties to this action there isno contest; no question has to be tried.
I doubt whether there are here the conditions required by LordEsher, for in this action there would be no evidence and no inquiryif Walatappa Chetty’s application be refused. If Walatappa Chettybe added as defendant, there must be new pleadings. What causeof action the plaintiff can allege against Walatappa I do not know.
I would prefer to leave the parties to bring their actions in theirown way; the defendants seem to be willing that the plaintiff shouldget judgment against them ; why should the Court interfere to helpWalatappa Chetty, who has abstained from bringing an action, or
to help the defendants, who have not asked for help ?
VOL. I.
I