018-NLR-NLR-V-43-OLAGAPPA-CHETTIAR-v.-REITH.pdf
SOERTSZ J.—Olagappa Chettiar v. Keith.
91
1941Present: Soertsz and Wijeyewardene JJ.
OLAGAPPA CHETTIAR v. REITEL115—D. C. Kandy, 564.
Action under section 247 of the Civil Procedure Code—Claim in reconvention bydefendant—Rectification of deed in his favour—Joinder of distinct causeof action—Civil Procedure Code, s. 839.
In an action under section 247 of the Civil Procedure Code broughtby the judgment-creditor the defendant is not entitled to bring in,as parties defendant to the action, the vendors of the land in disputein order to obtain a rectification of the deed on which he relies.
The Supreme Court, however, acting under section 839 of the Civil Pro-cedure Code ordered the case to be laid by in order to give the defendantan opportunity to obtain a rectification of the deed either by negotiationwith the vendors orjby instituting an action against them for the purpose.Saibo v. Thevanayagam Pillai (24 N. L. R. 453), distinguished.
^ PPEAL from a judgment of the District Judge of Kandy.
N.Nadarajah, for the plaintiff, appellant.
V. Perera, K.C. (with him N. K. Cftoksy) for the defendant,respondent.
Cut. adv. vult.
March 28, 1941. Soertsz J.—
This is an appeal against an order made by the Additional DistrictJudge, Kandy, allowing two parties to be added as defendants in anaction instituted by the plaintiff under section 247 of the Civil ProcedureCode against the present defendant to have one-fourth share of thepremises called Spring Hill estate described in the schedule to the plaintdeclared executable as the property of one Manuel Costa, judgment-debtor, against whom the plaintiff had obtained writ.
The defendant’s case is that the interest of Manuel Costa in the landpassed to one Ponniah Peiris and to one Stanislaus Costa and that theypurported to sell this interest of Manuel Costa and all other interestsin this land as well as in another land to him, but that by an error on thepart of all concerned the land in question in this case was not includedin the deed of transfer to him. He avers that from the date of thetransfer he has been in possession of this land and that the error wasdiscovered only after the institution of this case. He therefore askedthat he be permitted to bring in the vendors as parties defendants inorder that he might obtain a rectification of his deed from them andconfront the plaintiffs with it.
In the answer filed by the defendant, he claimed a prescriptive titleto the entire land by virtue of his and his vendor’s possession and he alsocontended that if the deed in his favour “ did not operate to transfer thelegal title of his vendors their beneficial interests were actually trans-ferred ”. On those averments it was open to the defendant to ask foran adjudication between himself and the plaintiff on the pleas raisedtherein without any other parties being brought into the case. But thedefendant was not content to proceed to trial on that basis. He putforward the alternative claim that in the circumstances mentioned in hisanswer he is entitled to a deed of rectification from his vendors. It is inview of this claim that the defendant asked that his vendors be added as
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SOERTSZ J.—Olagappa Chettiar v. Reith.
defendants. But the cause of action involved in this claim lies not againstthe plaintiff but against third parties and on a proper view of the matterthe defendant’s motion is no less than an attempt to roll a case of his ownagainst his vendors with the plaintiff’s case against him. I shouldrequire very clear authority before I allow that to be done. The coursethe defendant seeks to take is, in my opinion, obnoxious to section 17 ofthe Civil Procedure Code which says that nothing in this Ordinanceshall be deemed to enable plaintiffs to join in respect of distinct causes ofaction. In this case if the motion of the defendant is allowed he inreality, becomes the plaintiff in a distinct cause of action against the newparties and the resulting position is the same as if two plaintiffs havejoined in respect of distinct causes of action, and what is more against twodifferent defendants. The words in section 18 of the Code “ The Courtmay order …. that the name of any person …. whosepresence before the Court may be necessary in order to enable the Courteffectively and completely to adjudicate upon and settle all questionsinvolved in the action be added ” are no doubt very wide, but they mustbe interpreted in relation to and subject to the provisions of section 14and 18 of the Code.
The case of Messrs. Saibo v. Thevanayagam Pillai' is distinguishable.In that case the defendant’s claim for rectification was really against theplaintiff because the rectification of the plaintiff’s deed was involvedin the rectification he sought of his own, and the party proposed to beadded was necessary for the rectification of the two deeds, for he was thevendor both to the plaintiff and to the defendant. Whereas in the presentcase the plaintiff has no kind of connection or concern with the partiessought to be added.
For these reasons I am of opinion that the order of the trial Judge waswrong and that it should be set aside. But the facts disclosed in thedefendant’s answer are such as to make it necessary for the ends of justicethat the defendant should have an opportunity to obtain a rectification ofhis deed either by negotiation with his vendors or by instituting an actionagainst them for the purpose. I would, in the circumstances, act undersection 839 of the Civil Procedure Code and direct that this case be laid byfor the period of three months calculated from the date of the record beingreceived in the Court below. It will be open to the defendant at the endof three months to ask for an extension of time from the trial Judge.The Judge will no doubt grant that application and any further applica-tions ' if he is satisfied that the defendant is acting bona fide and asexpeditiously as possible to obtain a rectification of his deed. If he isnot so satisfied he will direct the action to proceed as at present consti-tuted. We have no doubt that the Judge will see that this case is notunduly retarded. I would, therefore, set aside the order made by thelearned District Judge and remit the case to him for the purpose indicatedabove.
The appellant is entitled to the-costs of this appeal and of the inquiryin the Court below.
Wijeyewardene J.—I agree.
* 24 N. L. R. 453.
Appeal allowed.