FERNANDO AND OTHERS
COURT OF APPEALJAYASINGHE, J.
D.C. NEGOMBO 4824/LJANUARY 20™. 2000.
Addition oj a Party – S. 18(2). S. 21, S. 404 Civil Procedure Code -Substitution – Party added or substituted – right to file amended Plaint ?
The Plaintiff instituted action seeking Declaration of title and ejectment.The position of the Defendant Respondents was that the Deed was aconditional transfer and prayed for re-transfer of the property.
While the action was pending the Plaintiff transferred the property to hisson and thereafter made an application to add the son as an added Party,which was allowed.
Thereafter the Added Party made an application to amend the Plaint. TheDefendant Respondents objected, and the District Court refused theapplication.
On a perusal of the proceedings it is seen that the Plaintiffs son hasbeen added as a party in terms of S. 18(2) and therefore not entitledto call himself a substituted Plaintiff and proceed to file Plaint.
If the Plaintiff desired to amend the Plaint after the son was brought inas an added party there will be no objection for the Plaintiff to amendthe Plaint with leave of Court.
There is no provision for the party added to assume the status of asubstituted Plaintiff and thereafter file Plaint because there is alreadybefore Court a Plaint on which the proceedings have commenced.
The words"as the case may require" in S. 404 cannot be used
APPLICATION for Leave to Appeal, leave being granted.
Senevlratne v. Fernando and others
Case referred to :
1. Euglne Fernando v. Charles Perera – 1988 2 CALR 37.
Sunil F A. Cooray with Chitrananda Liyanage for Substituted PlaintiffPetitioner – Petitioner.
Rohan Sahabandu with Athula Perera for Defendant – Respondent -Respondent.
Cur. adv. vu.lt.
March 22, 2001.
JAYASINGHE, J.The Plaintiff instituted action in the District Court ofNegombo against the Defendants abovenamed on 10.01.1994and thereafter filed amended plaint on 18.04.1994. She allegedthat the 1st and 2nd Defendants above named were the ownersof the land described in the schedule to the said amended plaint;that the said 1st and 2nd Defendants abovenamed on 14. 02. 1991conveyed the said property to her for a consideration of Rs.200,000/- by deed No. 6666; that, on the same day by deedNo.6667 executed a lease in favour of the said Defendants for aperiod of one year at a lease rent of Rs. 1000/- a month; thatthe 1st and 2nd Defendants without her prior consent sub leasedthe said land to the 3rd and 4th Defendant; that the said leaseexpired on 13. 02. 1993; that the Defendants failed to vacateand hand over possession of the said land upon the expiry ofthe lease. The Plaintiff accordingly sought a declaration of titlethereto, ejectment of the Defendants and for damages andcosts.
Defendants filed answer; averred that the Defendants neverintended to transfer the land to the Plaintiff and that it was onlya money transaction in that the money was borrowed to sendtheir son abroad; that a sum of Rs. 75,000/- has already beenreturned and prayed for re transfer of the said land to the 2ndDefendant on payment of Rs. 125,000/- and for dismissed ofthe Plaintiff's action.
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While the action was pending the plaintiff gifted the saidland to her son one Ariyaratne Seneviratne on 04.02.1996 andthereafter made an application to add the said Seneviratne asan added party. Court made order allowing the application.Thereafter the added party – the said Seneviratne made anapplication for amendment of the plaint. The Defendants filedobjection to the said amendment and the parties filed writtensubmissions. The learned District Judge by his order dated07. 10. 1998 refused the application for amended plaint.Aggrieved by the order of the learned District Judge the saidSeneviratne appealed to this Court.
Mr. Cooray submitted that the Plaintiff made an applicationon 19.03.1996 to add the Plaintiffs son as the “SubstitutedPlaintiff" and the Court allowed the said application on12.09.1997 and that there is no appeal against that order. The“Substituted Plaintiff" thereafter sought to amend the plaint.He submitted that an amendment of the plaint was essential inorder to put in issue the title acquired by the "SubstitutedPlaintiff " and to claim relief accordingly.
Mr. Sahabandu referred Court to the application of thePlaintiff dated 19. 03. 1996. He submitted that the saidapplication was for the son of the Plaintiff to be added as aparty, which application was allowed by the learned DistrictJudge. He submitted that there was no order made by thelearned District Judge to substitute the Plaintiff’s son asSubstituted Plaintiff.
TWo questions come up for determination by this Court.
was the Plaintiff's son added as a party in terms of Section
18(2) or whether he was substituted as Substituted Plaintiff
by the order of the learned District Judge?
is the party so added or substituted entitled to file "plaint”?
The Plaintiff by her petition dated 19. 03. 1996 averred,that, pending her action 4824/L in the District Court of Negombo
Seneviratne v. Fernando and others
for declaration of title and ejectment of the Defendants, she hadtransferred the property in question to her son and prayed thathe be added as a party. Thereafter the Plaintiff's son AriyaratneSeneviratne filed a petition and affidavit on 17. 12. 1996 seekingan order of Court that he be added as the 2nd Plaintiff or in thealternative as Substituted-Plaintiff in terms of Section 404 ofthe Civil Procedure Code. The learned District Judge by herorder dated 12. 09. 1997 allowed the application of the Plaintiffto add her son the said Seneviratne as an added party. Thewritten submissions tendered to Court by the Plaintiff-Petitioneron 16.06.1997 was on the basis that the said Seneviratne' to beadded as a party in terms of Section 404 and learned DistrictJudge only made a reference to the said application but did notstate the basis why she was allowing the application. Howeverit is clear that the said Seneviratne was only added as a party.Thereafter the said Seneviratne filed plaint as “SubstitutedPlaintiff” on 13. 03. 1998. The resulting position is that therecame to be a Plaintiff and Substituted Plaintiff. The Defendantsfiled objections on 19. 05. 1998 and moved that the plaint berejected as the said plaint has been filed in violation of Section39 and 40 of the Civil Procedure Code.
The learned District Judge in refusing the application foramended plaint gave a number of reasons. He observed thatthe purpose of the “amended plaint” was to cure certain defectsin the original plaint of the Plaintiff and that Section 21 permittedan amendment of the plaint only where a Defendant is added. Inthis instance the party added was a Plaintiff. He also referred toSection 404 but did not give reasons why it is inapplicable. Thelearned District Judge has held that the said Seneviratne wasadded as a Plaintiff and therefore did not have the right to amendthe plaint. However I find that Seneviratne has come to Courton a plaint as Plaintiff after he was added as a party by theorder of the learned District Judge by her order of 12. 09. 1997,even though in the caption Seneviratne is referred to asSubstituted Plaintiff.
Section 18(2) provides that – "And in the case of a
party being added, the added party or parties shall be named.
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with the designation “added party", in all pleadings or processesor papers entitled in the action and made after the date of theorder."
It is clear on the order of the learned District Judge dated12. 09. 1997 the said Seneviratne has been added as a party.The application of the Plaintiff was also to add Seneviratne as aparty to whom she had gifted the property by Deed No. 5782.However the application of Seneviratne was for him to be addedas the 2nd Plaintiff or in the alternative as Substituted Plaintiff.However Court has made no order regarding the application ofSeneviratne.
Section 404 provides that; "In other cases of assignment,creation or devolution of any interests pending the action, theaction may, with leave of the court, given either with the consentof all parties or after service of notice in writing upon them, andhearing the objections, if any, be continued by or against theperson to whom such interests has come, either in addition toor in substitution for the person from whom it has passed, asthe case may require." The words as the case may be cannotbe used indiscreminately.
What then was the status assumed by the said Seneviratneupon the order of the learned District Judge of 12. 09. 1997.The Plaintiff Wimalawathie in her plaint prayed for declarationof title; ejectment of the Defendants and for damages. Could itbe said that she cannot maintain an action for declaration oftitle upon her transferring the property to Seneviratne? Rightsof parties are to be determined as at the time of the institutionOf the proceedings. If the Court is to hold with the Plaintiff hertitle is vindicated and the right that accrues to her will standtransferred to Seneviratne on the Deed No. 5782. Similarly ifshe fails no rights pass on to Seneviratne and Deed No. 5782 isof no avail. I cannot agree with Mr. Sahabandu’s submissionsthat the Plaintiff cannot ask for declaration of title as she hasnow lost title. It will not be possible for Court to give judgmentfor Seneviratne without first having considered the title of hispredecessor.
Seneuiratne v. Fernando and others
In Eugine Fernando v. Charles Perera111 the Plaintiffwho claimed to be. the owner of a land which was occupied bythe Defendant instituted an action for declaration of title,ejectment of the Defendant and damages. Pending the actionthe Plaintiff transferred the premises and the transferee madean application to be added as a Plaintiff and the plaint wasamended to the effect that the original owner was the first Plaintiffand the transferee the 2nd Plaintiff. The District Court grantedrelief to the Plaintiffs except granting them damages. On appealit was held that on a true reading of Section 404 of the CivilProcedure Code there was no impediment to bring in apurchaser of the Plaintiff's interests, in addition to the Plaintiffand the action continuing to enable the purchaser to get therelief that the Plaintiff could have got but for the transfer. 2ndPlaintiff was not entitled to the relief granted by the District Court.
Here the transferee was added as 2nd Plaintiff.
On a perusal of the proceedings I find that the Plaintiff’sson has been added as a party in terms of Section 18(2) andtherefore not entitled to call himself a Substituted Plaintiff andproceed to file plaint. If the Plaintiff desired to amend plaintafter the son was brought in as an added party there was noobjection for the Plaintiff to amend the plaint with leave of court.There is no provision for the party added to assume the statusof a Substituted Plaintiff and thereafter file plaint because thereis already before Court a plaint on which the proceedings havecommenced.
In any event the said Seneviratne cannot come before Courtas Substituted Plaintiff or as 2nd Plaintiff for no order has beenmade by the learned District Judge to that effect. The learnedDistrict Judge therefore cannot be faulted for refusing theapplication of the said Seneviratne to file amended plaint asSubstituted Plaintiff. Appeal is dismissed with costs fixed atRs.5,250/-.
JAYAWICKRAMA, J. – I agree.Appeal dismissed.
SENEVIRATNE v. FERNANDO AND OTHERS