017-SLLR-SLLR-2002-3-SUSIL-PERERA-v.-KELLY-AND-ANOTHER.pdf
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Susil Perera v. Kelly and Another
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SUSIL PERERA
v.
KELLY AND ANOTHER
COURT OF APPEALU DAL AG AM A, J. ANDNANAYAKKARA, J.
CALA NO. 140/2002DC COLOMBO NO. 18626/LMAY 06, 2002
Civil Procedure Code, sections 12 and 22 – Addition of a party – Objective – Isit necessary to claim relief against added party?
The plaintiff-respondent instituted action seeking to cancel a deed of gift and forejectment of the 1st defendant-respondent. The cancellation was sought on an allegedingratitude by the respondent towards the plaintiff-respondent the donor. The 1stdefendant-respondent in her answer averred that the property was gifted subsequentlyto the petitioner. The petitioner was added as a party. When the matter was takenup for trial, the petitioner made an application to have him released on the basisthat no relief has been claimed against him, and the plaintiff has failed to amendthe original plaint in terms of section 21. It was contended that as no cause of actionor any allegation has been disclosed against the petitioner, there is no necessity,for the petitioner to participate in the proceedings.
The District Court refused the application.
Held:
The petitioner has raised the objection on the 3rd date of trial, although hehad several opportunities before this date to raise, this particular objection.The petitioner who had participated in the proceedings till the 3rd date ofhearing, after having formulated the contested issues, cannot be permittedto withdraw from the case as and when he wished to do so.
Any objection to misjoinder of causes of action has to be taken before thehearing.
Once a party is added as a party to an action, court has no power to strikehim off afterwards.
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Per Nanayakkara, J.
The objective in adding a party to an action is to enable the Court to effectuallyand completely adjudicate upon and settle -all the questions involved and notnecessarily to claim relief against him; the fact that no relief has been claimeddoes not entitle the petitioner to a discharge from proceedings, if his presenceis necessary for the effectual determination of all the issues involved."
APPLICATION to leave to appeal from the Order of the District Court of Colombo.
Cases referred to :
Rauther v. Kandasamy – (1920) CWR 16.
Adlin Fernando and Another v. Lionel Fernando and Others (1995) 2 SLR 25.
Bandiya v. Kiriya – (1916) 2 CWR 115.
Ranjan Suwandaratne with Ranjit Perera for defendant-petitioner.
Harsha Soza for plaintiff-respondent.
Cur. adv. vult.
June 25, 2002
NANAYAKKARA, J.
The plaintiff-respondent (respondent) instituted action in the DistrictCourt of Colombo against the 1st defendant-respondent seeking, interalia, the cancellation of deed No. 04. dated 13th August, 1997, attestedby D. D. Wickremasinghe, Notary Public, and also for ejectment ofthe 1st defendant-respondent and all those who are holding under herfrom the property described in the Schedule to the plaint.
The cancellation of the deed was sought on an alleged ingratitudeby the respondent towards the plaintiff-respondent who gifted theproperty which is the subject-matter of the action.
The 1st defendant-respondent who filed her answer in response tothe averments set out in the plaint among other things had averred
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that the property which was gifted to her was subsequently gifted tothe petitioner by virtue of deed No. 2123 dated 30. 07. 99, attestedby S. B. F. Wijeratne and he has become the absolute and sole ownerof the property and prayed for the dismissal of the action.
Thereafter, on an application made under section 18 of the CivilProcedure Code, by the plaintiff-respondent the petitioner was addedas a party defendant to the action. Thereafter, the petitioner who filedhis answer denying averments contained in the plaint, claimed thathe was the absolute owner of the property in respect of which action 20was instituted by the plat.
At the trial which was taken up on 29. 09. 2000, after recording2 admissions the parties had proceeded to formulate issues in thecase. The plaintiff had raised 8 issues while the 1st defendant hadraised 5 issues.
Thereafter, another additional issue which was suggested by thelearned counsel for the plaintiff-respondent had been refused by thelearned District Judge after considering the submissions made by therespective parties.
When the case was taken up for trial counsel for the 1st defendant- 30respondent had suggested 3 more fresh issues (15, 16 and 17) onthe basis of ex facie non-disclosure of a cause of action andnon-maintainability which issues counsel wanted the court to try aspreliminary issues.
The learned District Judge who made an order on the matter onthe basis of written submissions of the parties deferred answeringthose issues along with other issues at the conclusion of the trial.
Thereafter, when the case was taken up for further trial on19. 10: 2001, the counsel for the petitioner made an application tohave the petitioner released from the proceedings on the basis that 40
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no relief has been claimed against him by the plaintiff-respondent.It is against the refusal of the learned District Judge by his order dated03. 04. 2002 to release the petitioner has preferred this leave to appealapplication praying for the relief claimed therein.
The petitioner’s main complaint is that although the petitioner wasadded as a party to the action, on an application made by the plaintiff-respondent, he had failed to amend the original plaint in terms of theprovisions of section 21 of the Civil Procedure Code nor has he soughtany direction from counsel in terms of the said section in regard tothe amendment of the plaint.
The petitioner has also contended that as no cause of action orany allegation has been disclosed against the petitioner, there is nonecessity for the petitioner to participate in the proceedings.
It would be necessary at this stage to examine the validity of theargument advanced by the petitioner on the question whether he shouldbe released from the participation of the proceedings. In making adetermination in regard to the validity of the argument advanced bythe petitioner, attention should be focused on section 22 of the CivilProcedure Code.
Section 22 of the Civil Procedure Code provides thus :
“All objections for want of parties, or for joinder of parties whohave no interest in the action, or for misjoinder as co-plaintiffsor co-defendants, shall be taken at the earliest possible opportunity,and in all cases before the hearing. And any such objection notso taken shall be deemed to have been waived by the defendant.”
A close examination of this section makes it evident that allobjections for want of parties for joinder of parties who have no interestin the action or misjoinder as co-plaintiffs or co-defendants should betaken at the earliest possible opportunity and the failure to lodge such
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objection at the earliest possible opportunity will deprive him of the 70opportunity of raising the objection, as such objection is deemed tohave been waived.
As far as the facts of the present case are concerned, it is evidentthat the petitioner has neither taken up this objection in answer norat the first hearing. The petitioner has thought it fit to raise the objectionon the 3rd date of trial, although he had several opportunities beforethis date to raise this particular objection. The petitioner who hadparticipated in the proceedings till the 3rd date of hearing after havingformulated the contested issues in the case, cannot be permitted towithdraw from the case as and when he wished to do so.80
In this connection reference to the following authorities would behelpful in the resolution of the issue involved. In Rautherv. Kandasamy,;(1)when objection was taken to the joinder of certain parties and causesof action 3 days before the date fixed for hearing, the Supreme Courtcommenting on the belatedness of the objection observed in thefollowing terms:
‘The objection should have been taken immediately after theplaint in the action and it was far too late to come three daysbefore trial when, if the objection was allowed, the trial would havehad to be postponed. There appear to be no merits in the objection 90that was taken as it would appear‘to be more convenient that theentire dispute between all the parties should be settled on the sameoccasion.”
In the case of Adlin Fernando and Another v. Lionel Fernando andOthers. Justice Ranaraja had made the following observation in regardto the objection to misjoinder of parties and causes of action:
“Thus, it is clear that if any objection to misjoinder of causes _of action is raised by the defendants, it has to be done beforethe hearing. It is not open to a defendant to await the framing of
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issues by the plaintiff, and then without prior notice to the plaintiff, 100frame issue on misjoinder of parties or causes of action.”
It should also be observed that once a party is added as a partyto an action, court has no power to strike him off afterwards. Thisis clearly evident from reasoning adopted in the case of Bandiya v.Kiriya.® Justice Shaw has made the following observation:
“I do not think the Commissioner was right in doing this. Havingjoined him as a party it seems to me that he had no right to afterwardstrike him out. That he was a person who had an interest in theproceedings seems to be clear, and he had a serious interest inthe result of the case and also his presence before the court was nocertainly proper for the purpose of enabling the whole of the matterin controversy to be settled in the present action.”
The objective in adding a party to an action is to enable the courtto effectively and completely adjudicate upon and settle all the questionsinvolved in the action and not necessarily to claim relief against him.The fact that no relief has been claimed against the petitioner doesnot entitle the petitioner to a discharge from the proceedings if hispresence is necessary for the effectual determination of all the issuesinvolved in the case.
Therefore, when all these matters are taken into consideration, I '»>am inclined to the view that the petitioner is not entitled to leave inthis matter.
UDALAGAMA, J. – I agree.
Application dismissed.