MUTHUCUMARANA v. WIMALARATNE AND ANOTHER

018-SLLR-SLLR-1999-V-1-MUTHUCUMARANA-v.-WIMALARATNE-AND-ANOTHER.pdf


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Muthucumarana v. Wimalaratne and Another
139
MUTHUCUMARANA
v.WIMALARATNE AND ANOTHER
COURT OF APPEALWIGNESWARAN, J„
JAYAWICKREMA, J.
A. NO. 282/97
C. COLOMBO NO. 4763/SPLNOVEMBER 06. 1998
Civil Procedure Code – S. 75 (e) – Property held in trust – Transfer invalid -Deed a forgery – Damages – Claim in Reconvention by way of a motion – Adverseclaims set up by defendants inter se. – Motion.
The plaintiff-respondent instituted action against the first defendant-petitioner andsecond defendant-respondent seeking a declaration that the 1st defentantheld the premises in trust for him and further sought to expunge the registrationof the deed from the books maintained by the Registrar of Lands. The firstdefendant-petitioner claimed damages from the second defendant-respondent.
The second defendant-respondent objected to the claim in reconvention by wayof a motion. The District Court upheld the objection and dismissed the firstdefendant-petitioner's claim for relief against the 2nd defendant-respondent.
Held:
There is nothing in the CPC which prohibits a party to an action filing amotion at any stage and claiming an appropriate relief.
The claim in reconvention has been designed by law to set off against theplaintiffs demand – the answer with its claim in reconvention should havethe same effect as a plaint in a cross-action.
Per Wigneswaran, J.
"Opposing parties who are at variance with each other are allowed toset off their individual claims against each other in the same action, thereis no express provision in the CPC holding out that such a right of set offextends to defendants inter se."
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The determination of the conflict of interest between the defendants interse must necessarily correlate to the determination of the primary claim bythe plaintiff.
Unless the conflict between the defendants inter se has to be resolved inorder to give the plaintiff the relief he claims such adverse claim need notbe determined in the same action.
Per Wigneswaran, J.
"Claim for damages which the first defendant has preferred against thesecond defendant need not be determined to ensure that the plaintiffrespondent obtained his relief."
APPLICATION for Leave to Appeal from the Order of the District Court of Colombo.
Cases referred to:
Senaratne v. Perera – 26 NLR 225.
Kanagammah v. Kumarakulasingham – 60 NLR 529.
Kandavanam v. Kandasamy – 57 NLR 241 at 242.
Fernando v. Fernando – 47 NLR 208 at 209.
Banda v. Banda – 72 NLR 475 at 476, 477.
Robert Dissanayake and another v. People's Bank and another – 1995- 2 SLR 320.
T. Wijegunawardena for first defendant-petitioner.
S.Mahenthiran for second defendant-respondent.
Ikram Mohamed with Ms. A. T. Shyama Fernando for plaintiff-respondent.
Cur. adv. vult.
November 19, 1998.
WIGNESWARAN, J.
The plaintiff-respondent instituted DC Colombo Case No.. 4763/Splagainst the first defendant-petitioner and second defendant-respondentpraying, inter alia, for declarations –
that the first defendant held the premises in suit described inthe schedule to the plaint in trust for him.
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Muthucumarana v. Wimalaratne and Another (Wigneswaran, J.)141
that the first defendant had no manner of right, title nor interestto transfer the said premises to the second defendant by deedNo. 459 dated 19.10.1994 attested by T. D. Ranasinghe, NP,and
that deed No. 459 was an invalid deed and of no force inlaw and therefore its registration should be expunged from thebooks kept by the Registrar of Lands.
The first defendant-petitioner filed answer on 11.8.97 pleading thathe was not a party to the execution of the said deed No. 459 andthat such deed was a forgery enacted by the second defendant-respondent. Since he had to leave a lucrative job in the Middle Eastand come back to Sri Lanka due to the said action being filed, heclaimed, inter alia, Rs. 100,000 as damages from the seconddefendant-respondent.
The second defendant-respondent objected to the first defendant-petitioner's claim in reconvention by way of a motion dated 26.8.1997.
The District Judge, Colombo, by order dated 16.10.97 upheld theobjection and dismissed the first defendant-petitioner's claim for reliefagainst the second defendant-respondent.
This is a leave to appeal application against the said order. Thelearned counsel for the second defendant-respondent has submittedthat leave should be refused.
The learned counsel for the first defendant-petitioner hassubmitted as follows :
The second defendant-respondent could not have in law movedCourt for relief by motion before filing his answer.
Since there is no conflict of interests between the plaintiff andthe first defendant the latter's claim-in-reconvention shouldhave been allowed. Allowing the claim would also avoid multiplicityof actions.
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It is open to Court to adjudicate upon adverse claims set up bydefendants inter se Senaratne v. Perera<" and Kanagammah v.KumarakulasinghamPl
Consequently, the learned counsel has prayed that the order ofthe District Judge, Colombo, dated 16.10.1997 be set aside and thefirst defendant-petitioner's answer containing the claim in reconventiondated 11.8.97 be accepted. The counsel for plaintiff-respondent toohas expressed similar sentiments in his submissions. Thesesubmissions would now be considered in detail.
Right of a co-defendant to act by way of motion before filing answer.
There is nothing in the Civil Procedure Code which prohibits a partyto an action filing a motion at any stage and claiming an appropriaterelief. A motion is a document which moves Court to act. Filing ofa motion may not be a step in the regular procedure, which procedurelays down the type of pleadings that should be filed. But it isnevertheless an application to Court made in the course of an actionincidental to the procedure adopted by Court either Regular orSummary, calling upon the Court for its intervention.
Section 46 (2) of the Civil Procedure Code gives right to the Courtto refuse to entertain a plaint or reject a plaint. This right can beused by Court ex mero motu though generally due to the large numberof cases filed in a Court of Law in present times, the Court doesnot have the time to look initially into the matters set out in section46 or 47 of the Civil Procedure Code until the Court's attention isdrawn either by the Registrar of the Court or subsequently by a partyto the action. Suppose a Court has patent lack of jurisdiction toentertain a plaint in its Court, the Registrar of the Court has the rightto bring this matter to the notice of Court not by motion but by anendorsement made on the journal. Similarly a party to an action couldbring any matter incidental to the action which needs the attentionand intervention of Court to the notice of the latter by motion, (videsection 91 of the Civil Procedure Code). A Court's right to entertainsuch application by motion and act upon them derives sanctionapart from specific provisions in law, from also the inherent authority
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Muthucumarana v. Wimalaratne and Another (Wigneswaran, J.)143
granted to it by law to make such orders as may be necessaryfor the ends of justice or to prevent abuse of the process of theCourt (vide section 839 of the Civil Procedure Code).
In the instant case it appears that answer had been filed by thesecond defendant-respondent on 24.1.97 long before the date of filingmotion (26.8.97) though not properly minuted. The cash receiptNo. C476230 dated 24.1.97 refers to "csf" and "SsdJ" in respect ofcase No. 4763/Spl. This would mean that stamp fees had beentendered for "answer" (csfodcs) and "objections" (QeddOao) what wasdue to be filed as per Journal Entry dated 24.1.97 were – . . . Whatwere filed appear to have been answer, statement of objections withaffidavit even though the journal entry only refers to" . . .
If the answer was not filed on 24.1.97 when it was due, thejournal entry would have referred to a date being given for answeror at least stated, 'answer not filed'. We must, therefore, presumethat answer of the second defendant-respondent was filed on 24.1.97in view of the certified copies with endorsement from Registrar, DistrictCourt, being filed.
The motion filed by the second defendant-respondent dated 26.8.97became necessary due to the claim in reconvention filed by the firstdefendant-petitioner through his answer dated 11.8.97.
Since motion dated 26.8.97 had been filed by the seconddefendant-respondent subsequent to the date of filing his answer forthe reasons enumerated above, the first submission by the learnedcounsel for the first defendant-petitioner would fail.
No conflict of interests between plaintiff and the first defendant –
Court must avoid multiplicity of ‘actions.
Section 75 (e) of the Civil Procedure Code states, inter alia, asfollows :"…. A claim in reconvention duly set up in the answershall have the same effect as a plaint in a cross action so as toenable the Court to pronounce a final judgment in the sameaction both on the original and on the cross claim . . .".
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The claim in reconvention therefore had been designed by law toset off against the plaintiffs demand, any claim a defendant couldlegally recover from him. The answer with its claim in reconventionshall then have the same effect as a plaint in a cross action. Thisenables the Court to pronounce a final judgment in respect of boththe original claim by the plaintiff and the later set off claimed by thedefendant. The goal of avoidance of multiplicity of actions is obtainedwhen opposing parties to an action who are at variance with eachother are allowed to set their individual claims against each other inthe same action. There is no express provision in the Civil ProcedureCode holding out that such a right of set off extends to defendantsinter se. Incidentally illustrations (fj and (g) of Rule 6 of Order viiiof the first schedule to the Indian Code of Civil Procedure (1908) stateas follows :
“(/) A and B sue C for Rs. 1,000. C cannot set off debt dueto him by A alone.
(g) A sues B and C for Rs. 1,000. B cannot set off a debtdue to him alone by A."
The provisions of our Code and that of the Indian Code of CivilProcedure with regard to claims in reconvention are similar thoughthe phraseology is different.
By prohibiting individual claims being set off where the plaintiffsare joint or defendants are joint, the Indian law has expresslydelineated the parameters within which counter claims can be made.
No such illustrations adorn our Code. But the principle governingclaims to set off cannot be any different. A Court must be presumedto have been statutorily enjoined to determine a claim made by aplaintiff or a set of plaintiffs on the one hand and a counter claimby a defendant against such plaintiff or set of plaintiffs jointly on theother or counter claim by a set of defendants jointly against suchplaintiff or set of plaintiffs jointly. A claim for set off which is differentin character to the claim made by the plaintiff must necessarily beexamined thoroughly by the Court to ensure that it falls within the
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category of a cross claim. When claims by defendant/defendantsagainst plaintiff/plaintiffs are subject to such scrutiny on account ofthe wording of section 75 (e) of our Civil Procedure Code where Courthas to ensure that the claim in reconvention falls within the scopeof a crossaction, how much more circumspective would a Court haveto be in entertaining substantive claims for relief preferred bydefendants inter se?
Unless the allowing of such claims by defendants inter se wouldenable the Court to determine whether the relief asked lor by theplaintiff (or against him upon a claim in reconvention) ought to begranted such applications must be rejected. But the formal decreecannot award substantive relief except in favour of the plaintiff oragainst him. (vide Justice Gratiaen in Kandavanam v. Kandasam/31).
If this test is applied to the case in hand it would be found thatthe right to claim damages by the first defendant against the seconddefendant could only arise after the determination of the matters inissue between the plaintiff and the second defendant or for that matterbetween the plaintiff and the first and second defendants. The claimmade by the first defendant against the second defendant in thisinstance arises consequent to the filing of action by the plaintiff. Theright of the first defendant to such a claim did not exist at the timethe plaintiff filed his action. The first defendant has made out in hisclaim in reconvention that he was employed in a lucrative employmentin the Middle East and that when he was informed about an actioninstituted against him and the second defendant by the plaintiff, hehad to come back from the Middle East leaving his employment. Healleged that the second defendant's unlawful and fraudulent act hadcaused him damages and thereby claimed Rs. 100,000 as damageswith a further sum of Rs. 5,000 per month as continuing damages.Clearly this claim can in no way help the Court to determine whetherthe relief claimed by the plaintiff against the first and seconddefendants ought to be granted or not.
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It was pointed out that there was no conflict of interests betweenthe plaintiff and the first defendant and therefore the claim in recoventionagainst the second defendant should have been allowed.
The fact that there is no conflict of interests between the plaintiffand the first defendant does not necessarily mean that any claim madeby the first defendant should be appended to the plaintiff's claim. Theplaintiff in this instance has claimed declaration of title and cancellationof the deed of transfer No. 459 dated 19.10.1994 attested byT. D. Ranasinghe, Notary Public. The claim of the first defendant isfor damages sustained by him claimed from the second defendantconsequent to the filing of action by the plaintiff against him (firstdefendant) and the second defendant. The two causes of action aredifferent and are in no way connected to each other. The first defendantneed not have come over to Sri Lanka leaving his lucrative job inthe Middle East. He could have denied the averments against himin the plaint and confirmed his ignorance of the execution of deedNo. 459 allegedly fraudulent. He need have come to Sri Lanka if atall, only to deny his signature on deed No. 459 at the time of trial.The money claim made by the first defendant is not against the plaintiffwho filed the case against him. It is against the second defendantclaiming in effect that due to the second defendant acting fraudulentlythe plaintiff was forced to file action against him and the seconddefendant and consequent to such action being filed against him bythe plaintiff the first defendant had sustained damages and suchdamages have to be paid by the second defendant. The claim of thefirst defendant is therefore a cause of action which in reality arisesif at all only after the plaintiff obtains his decree against the seconddefendant. If the plaintiff proves collusion between first and seconddefendants the basis for the claim in reconvention would fail. Thecauses of action are different and they arise at different times. Theyare not connected to each other. Under such circumstances the merefact that there appears to be no conflict of interests between theplaintiff and the first defendant does not necessarily give the firstdefendant the right to make his claim in reconvention as claimed in
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this case, since the claim in no way helps the Court to reach itsconclusion in the main case set up by the plaintiff, nor the claim inreconvention set up by the second defendant against the plaintiff.
The case law regarding claims by defendants inter se.
The case law submitted to us by counsel on both sides dealmainly with res judicata as between defendants inter se.
In Senaratne v. Perera {Supra) it was pointed out in effect thatwhen a plaintiff cannot obtain the relief he claims without an adju-dication between the defendants inter se, claims by defendants interse could be entertained and determined. Or, when adverse claimsare set up by the defendants to an action the Court may adjudicateupon the claim of such defendants among themselves. In the instantcase the plaintiff's case is not dependent on the first defendant's claimsin reconvention but vice versa. There are also no adverse claims bythe defendants inter se as against the plaintiff in this case to bedetermined by Court. Suppose two defendants claim title adverselyto certain shares of a property to which the plaintiff is claiming titlethen the determination of the respective title or lack of title of thedefendants inter se would become relevant and therefore the Courtwould be obliged to determine such adverse claims. Such adverseclaims are not before Court in this instance.
Thus, the principle that has to be adopted in such cases wouldbe to examine whether there is conflict of interest between thedefendants inter se and whether such conflict has to be resolved ordetermined in order to give the plaintiff the relief he claims, (videFernando v. Fernando<4) at 209 and Banda v. Banda(S> at 476 and477). The determination of the conflict of interest between thedefendants inter se must necessarily correlate to the determinationof the primary claim by the plaintiff. Otherwise we would allow .irrel-evant and independent claims which should form the basis for separateactions to be included in a case and thus made the task of the Courtto determine the main matters in issue difficult and cumbersome.
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In Kanagammah v. Kumarakulasingham (supra) at page 534Justice Weerasooriya stated as follows :
"Mr. Chelvanayakam, however, referred us to the case of Senaratnev. Perera et al (supra) which is also a decision of a bench of twoJudges. That case would appear to be an authority for the view thatit is open to a Court to adjudicate upon adverse claims set up bydefendants inter se and unconnected with the claim of the plaintiff,and an adjudication on such claims will be res judicata between theadversary defendants as well as between the plaintiff and thedefendants. The judgment of Jayawardena, AJ. in that case (with whichBertram, CJ. agreed) does not appear to have been considered inKandavanam et at. v. Kandasamy et al. (supra)."
These observations were of obiter in the above case. It is usefulto go back to Senaratne v. Perera et al. (supra) and examine theposition. At page 229 referring to adverse claims set up by defendantsto an action Justice Jayawardena said: “Instances of the secondexception are equally rare, for Courts are reluctant to enter upon aninquiry into the disputes arising between the defendants inter se andunconnected with the claim of the plaintiff, when once the plaintiffsrights have been adjudicated upon. But, there may be instances inwhich the Court has been induced to decide issues arising betweenco-defendants and to define their rights and obligations. In such acase, the decision would be binding between the defendants betweenwhom the issue had arisen. There is nothing in our Statute law toprevent a res judicata between co-defendants”.
These observations must be read with the principles recognizedafter the aforesaid judgment in many subsequent judgments suchas Fernando v. Fernando (supra), Banda v. Banda (supra) andKandavanam v. Kandasamy (supra). The principle is that unless theconflict between defendants inter se has to be resolved in order togive the plaintiff the relief he claims such adverse claims need notbe determined in the same action.
Justice Ranarajah in Robert Dassanayake and another v. People'sBank and another<6> stated thus : "Learned President's Counsel submitted
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that the decision in Kanagammah v. Kumarakulasingham (supra)supports the proposition that a defendant may add another as adefendant where the former has a claim against the latter and it isopen to a Court to adjudicate upon adverse claims set up bydefendants inter se. This decision is based on the judgment ofJayawardena, AJ. in Senaratne v. Perera (supra). But, on reading thatjudgment it appears that it does not go so far, but supports theproposition that when the plaintiff cannot obtain the relief he claimswithout an adjudication between the defendant and another, suchother party may be added as defendant.
In the present case we find that the claim for damages which thefirst defendant has preferred against the second defendant need notbe determined to ensure that the plaintiff-respondent obtained hisrelief.
We, therefore, find that the order of the learned District Judgedated 16.10.97 need not be interfered with. We refuse to grant leavein this case and dismiss the application with costs payable by thefirst defendant-appellant to the second defendant-respondent only,plaintiff-respondent will bear his own costs.
JAYAWICKREMA, J. – I agree.
Application dismissed.