076-NLR-NLR-V-43-PUNCHI-APPUHAMY-v.-RAMBUKPOTHA.pdf
Punchi Appuhamy v. Rambukpotha.
333
1942
Present: Soertsz and Keuneman JJ.
PUNCHI APPUHAMY v. RAMBUKPOTHA.
85—D. C. Badulla, 6,425.
Warranty—Notice to vendor—Undertaking to warrant and defend—Evidence byvendor—Failure to appeal—Claim fon damages.
Where a purchaser of property who was sued in eviction called uponhis vendor to warrant and defend his title and the latter, undertakingto do so, gave evidence in support of his title,—
Held, that the failure of the vendee to appeal from a judgment evictinghim does not debar him from claiming damages from his vendor.
HIS was an action brought by the plaintiff, claiming damages from
X the defendant for failure to warrant and defend title to land soldby the latter to plaintiff.
In the action in which the plaintiff was sued on eviction the defendantwas given notice to warrant and defend the title conveyed by him. Atthe trial of that action the defendant gave evidence but his evidence wasnot accepted and judgment went against plaintiff. In this action thelearned District Judge gave judgment for plaintiff.
H. V. Perera, K.C. (with him N. Kumarasingham), for defendant,appellant.—It is the duty of the plaintiff to have made the defendanta party to the action, so that he may assist in the defence. Whetherthat is done or not the plaintiff is bound to make a proper defence. If heis defeated in the action he must appeal. If he does not appeal or havingappealed abandons it, the defendant is not liable.—Voet 21.2.30 ; Berwick,p. 536 ; Jinadasa v. Duraya.
Unless the defendant has been added as a party he has no control overthe litigation. He certainly has no right to appeal.
In respect of the third land the plaintiff did not contest the action atall, and allowed judgment to be entered ex parte. He cannot thereforeclaim any damages.
L. A. Rajapakse (with him Percy de Silva), for plaintiff, respondent.—The notice may be verbal and need not be in writing—Krishnasamy v.Awaddyapen.'
Once timeous notice of the suit is given, it is the vendor’s duty tointervene or assist in the defence.—Voet 21.2.20; 3 Maas dorp 184;Memka v. Adacappa Chetty Wirawardene v. Ratnayake *. The words“ vendor being absent ” in Voet 21.2.30 refers to cases where no noticehas been given in time or he is otherwise justifiably absent. See Voet21221 ; Berwick, p. 527.
Here the vendor failed to intervene in the action. He was a witnessand his evidence of title after a full trial was rejected. He vendee isnot obliged to incur further expenditure by pursuing an appeal. If thevendor wanted the matter carried further, he should have financed theplaintiff to appeal.
320N.L. R. 158.3 17 N. L. R. 93.
» 1 Bal. N. C. 73.* 22 N. L. R. 219.
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43/25
334KEVr.f.V.Iv.-.. 1j*i■ S(.inrj'iltpo;,i.
Regarding the itnrd i.-m,w.t r.equesied the pratti'iiff no*. *c.
contest it It has beea held 😉 cu tr.“ vendor fails to assist in the actionby absenting himself on the trial date, the vendee is not o.usnd ever tocontest the case—Kandiah v. Viaualingatn
H. V. Per era, K.C., in reply.February 25, 1942. Keuneman J.—
Cur. adv. vu’-.
In this case the defendant by deed P 3 of March 18, 1930, transfer, -.itto the plaintiff and three others three contiguous allotments of land lorthe consideration of Rs. 2,000. As regards one of these' allotments oneKandasamy sued the vendee, and was awarded certain damages andcosts, but the vendee did not suffer eviction, and the plaintiff and v:–heirs of Banda subsequently transferred their interests. No quest.orarises in this case with regard to this allotment.
As regards a second allotment, one Ramasamy sued the vendeesin Court of Requests, Badulla, No. 5,769, and on November 8, 1932 (seeP 3/b) the following journal entry appears :—“ Defdt’s vendor—j. A. Ram-bukpotha (i.e., the present defendant) present and, undertakes to warrantand defend. ” In the trial the present defendant gave evidence, whichwas not accepeed. and judgment went against his vendees. The presentdefendant was not formally made a party to the Court of Requests case.
• No appeal was preferred against the judgment—.which was datedSeptember 11, 1934. In the present action the purchase price wasclaimed, in respect of this allotment, and also certain costs incurred inrespect of the conveyance .and the Court of Requests case.
A similar claim is made in respect of .the third allotment of land. Inthis connection Kaliamma in whose place certain other plaintiffs weresubstituted sued the vendees for declaration of title in District Court ofBadulla, No. 5,119 (see P 5). This case was pending at the time of thedecision of the Court of Requests No. 5,769. The vendees did not defendthis case in the end, and decree nisi was entered against them on March18, 1935.
Counsel for defendant-appellant argued that the plaintiff could notsucceed in respect of the second allotment of land, because he had failedto appeal against the judgment of the Commissioner of Requests, and inrespect of the third allotment of’land, because he had failed to offer anydefence at all. Counsel depended on Voet’s Commentary of thePandects 21.2.30 in which Voet set out the grounds on which an actionlike the present fails : “ Also when the purchaser has not appealed whendefeated in the suit, the vendor being absent ; or has appealed indeed,but has abandoned the appeal; contrary to what obtains if the vendorhad been present, for in that case the duty of appealing lies on him if hethinks this step should be taken. ” (Berwick’s Voet, p. 536).
It is clear in this case that notice to warrant and defend had beenserved on the defendant in respect of both actions, viz., C. R. No. 5,769and D. C. No. 5,119. The duty of the defendant as vendor has been
i IS C L Tier ir>.
KEUNEMAN J.—Punchi Appuhamy v. Rambukpotha.335
laid down by our Courts, vide Pereira J. in Menika v. Adakappa Chetty
On the receipt of that notice it was clearly thd' duty of the presentdefendant to apply to the Court to have himself added as a part^ to thecase, or otherwise render to the defendants in that case all the help thatit was within his power to render, and defend the title of his vendeesagainst the attack made on it by the plaintiffs. ” See also de Sampayo J.in Wirawardene v. Ratnaike * in which he expressed the opinion that he hadtaken too narrow a view of the law in Murugan v. Murugupillaiandcontinued: “The expression Used in Voet 21.2.20 is ut lite assistat, „which does not necessarily mean that the vendor should make himselfa party to the action. The object of his doing so, if he so chooses, is,as explained by Voet, to prevent collusion, and not to convert the litiga-tion into one against himself. At the same time, Voet points out otherways of fulflling the vendor’s obligation, such as by becoming thepurchaser’s procurator in rem suam, or by supplying the purchaser,whose title is attacked, with assistance and proof for establishing thetitle. ” De Sampa3'o J. approved of the language of Pereira J. in Menikav. Adakappa Chetty (vide supra). Schneider J., who was associated withdi- Sampayo J., examined the language of Voet and summed up his opinionas follows, “ It is left to the vendor either to make himself a party, or. inany other manner assist the proof qf the title conveyed by him. It is notessential he should become a party. ”
Mr. H. V. Perera, for the appellant, however, contended that when thevendor does not become a party to the litigation, he must be treated as“ absent ”, and in that case a heavy burden lies on the vendee to fightout the case to,the best of his ability, and if defeated, to appeal and presshis appeal. Counsel argued that a vendor who is not a party has nocontrol of the litigation and cannot himself prefer an appeal, or compelthe vendee to appeal. I do not, however, think that the language ofVoet, already cited, should be given so restricted a meaning. Voet doesnot say that vendor should be present as a party to the litigation. It ispossible that, where the vendor is passive, and takes no steps whateverto assist the vendee in the litigation, the burden which Voet describedis imposed upon the vendee.
This case is far removed from that. The defendant was not onlyphysically present at the litigation in his capacity as witness, but hadalso given a solemn undertaking, which was recorded, to warrant anddefend. I think we cannot regard the defendant as' an absent vendor,but as one who was present, and actively assisting in the litigation. Thetechnical point that the vendor could not himself appeal is, I think,of little substance, for he should have taken all steps to make an appealeffective. I may add that the dictum of Schneider J. in Siriwardena v.Banda* supports the view I have adopted. The appeal therefore failsas regards the second allotment of land.
As regards the third allotment, the. position is different. The vendeefailed to put forward any defence, and the action was decided ex parte. _But the vendee in his evidence stated, “ I did not contest this. case.
* 17 N. L. R. 93.3 3 Bal. N. C. 14.
. * 22 N. L. R. 219.* 22 N. L..R. 254.'
338
KEUNEMAN J.—Punchi Appuhamy v. Rambukpotha.
The defendant told me not to fight the case, and asked me to settle.He refused to come and give evidence as a witness. That was afterC. R. No. 5,769 was decided. ” This evidence bears the impress of truth.For it is clear by the defendant’s letter P 2 dated November 22. 1934,that at that stage the defendant had agreed to refund the purchase price..and to get a retransfer of the allotments. Eventually defendant did notimplement this agreement. The failure on the part of the vendee todefend was based on the direct request of the vendor, and was, therefore,justified.
The appeal is dismissed with costs.
Appeal dismissed.
Soertsz J.—I agree.