1 (19ld) 19 N. L. R. 289.
MAARTENSZ J.—Seelananda Thera v. Rajapakse.
A. Hayley, K.C. (with him C. V. Ranaivake), for defendant andadded defendant, appellants.—This is a case in which relief should begranted under section 770 of the Civil Procedure Code, 1889. Theprinciples under which the Court should exercise its descretion are laiddown in Ibrahim v. Beebee1.
This case commenced as a possessory action. The plaint was amendedin August, 1934, when the plaintiff’s two lessees were joined as addedplaintiffs. During the course of the trial, the plaintiff was allowed tocontest an entirely different action, namely, on an incumbency. Theadded plaintiffs were there nominally. They were not represented atthis stage. A new< set of issues were framed and the original issues weredisregarded. The whole judgment deals with the incumbency and thelearned trial Judge has answered the new issues only.
The decree has given certain rights to the added plaintiffs, but theappeal is from the judgment and not from the decree. The code allowsa party to appeal from the “ judgment, order or decree”. The decreemay be varied to bring it into line with the judgment—section 189 of theCivil Procedure Code, 1889. Section 5 defines a decree and it may bedrawn up at any time though it is dated as from the judgment—section188. A copy of the judgment was brought to Colombo for the purpose ofdrafting the petition of appeal. The question decided there was whetherthe plaintiff was the incumbent. (Ramasamy Chettiar v. Mohamadu LebbeMarikar )
N. E. Weerasooria, in reply.—It is impossible to distinguish this casefrom those dismissed for not joining the necessary parties. This practicehas existed for a long time. The necessary parties must be found outaccording to the decree. The added plaintiffs are vitally interested.They have substantial rights. It is quite possible that the petition ofappeal may have been drafted without the'decree, but that is a negligenceof the proctor for which the defendant must suffer.
The added plaintiffs would be prejudiced if the appeal is allowed.Thegis et al.'v. Don Emanis et al ’.
Cur. adv. vult.
March 17, 1938. Maartensz J.—
The plaintiff as controlling trustee of the Kotabogoda Vihare broughtthis action to be restored to possession of a parcel of land vested in thevihare from which he alleged the defendant ousted him. The defendantclaimed to be entitled to possess the land under a lease from anotherpriest who he asserted was the real trustee.
The plaintiff himself had leased the property to certain persons and hefiled an amended plaint in which he averred that his lessees were necessaryparties to the action and prayed that the defendant be ejected and heand the lessees restored to possession.
. The lessees were added as party plaintiffs.
The trail commenced on January 8, 1935, when issues were framed asto the possession of the plaintiffs and added plaintiffs, whether the
« 11916) 19 N. L. R. 289.* {1937) 17 Cey. Law Sec. It.
* (1933) 17 Cey. Law Bee. 78.
MAARTENSZ J.—Seelananda Thero v. Rajapakse.
defendant had taken wrongful possession from the plaintiffs and addedplaintiffs, and what damages the plaintiffs and added plaintiffs wereentitled to.
The trial proceeded on these issues for several days. On January 15,1936, the District Judge intimated to the parties that the trial would beof no use to either party unless the defendant’s lessor is added as a partyand the question of who is the “ Adikari Bhikkhu ” decided.
The lessor was in Court and he was added as defendant.
On March 17, 1936, the plaintiff and added plaintiffs filed an amendedplaint in which they, in addition, prayed that the plaintiff be declared theincumbent of the vihare.
When the trial was resumed on April 30, 1936, fresh issues arising fromthe prayer that the plaintiff be declared trustee were framed and issues■were also framed as to the possession of the plaintiff and added plaintiffsand as to ouster and damages. They are numbered 5 to 14, but, asobserved by the District Judge, they “ take in the previous issues and arecomprehensive
The District Judge held that the plaintiff is the Adikari Bhikkhu andthat the lease P 16 which was the lease executed by the plaintiff in favourof the added plaintiffs prevailed over the lease D 1 relied on by thedefendant, and entered judgment for the plaintiffs as against the addeddefendant and defendant.
The defendant and added defendant have appealed. They have notmade the added plaintiffs respondents to the appeal, and a preliminaryobjection was taken to the hearing of the appeal on the ground that theappeal was not properly constituted.
The added plaintiffs are necessary parties as they are interested in theresult of the appeal. It is now settled law that when a necessary party isnot made a respondent the appeal should be rejected unless it is not clearfrom the proceedings that he was interested in the result of the appeal.The decree does not leave the matter in doubt. It further orders anddecrees that “ the defendant and added defendant be ejected from theland described in the annexed schedule and the plaintiff and the addedplaintiffs be put, placed, and quieted in possession thereof ”.
The appellants’ Counsel however pointed out that the appeal is from .the judgment which does not refer to the added plaintiffs in the answersto the issues and only refers to them in the words by which judgment isentered for plaintiffs. It was suggested that the word “ plaintiffs ” wasan error for “plaintiff” in the brief. I have referred to the original andI find that the word used is “ plaintiff ”.
It was submitted that it was not clear from the judgment that the addedplaintiffs were parties interested in the result of the appeal and thatinstead of dismissing the appeal we should make an order under section770 of the Civil Procedure Code directing the added plaintiffs to be maderespondents.
I regret I cannot accede to this submission. In my judgment it isperfectly clear from the steps taken to make the added plaintiffs partiesto the action, the finding of the District Judge that their lease prevailed
Abdul Aziz v. Mohamed. Buhary.
over the lease of the defendant, and the use of the word “plaintiffs” inthe group of words by which judgment was entered up. that the addedplaintiffs were necessary parties to the appeal and that there could havebeen no doubt about it.
I accordingly uphold the preliminary objection and dismissed the appealwith costs.
Hearne J.—I agree.
Appeal dismissed.