087-NLR-NLR-V-66-V.-PONNUTHURAI-et-al.-Appellants-and-N.-B.-JUHAR-et-al.-Respondents.pdf
SANS ONI J. J.— Ponnuthurai v. Juhar
375
1959Present: Basnayake, C.J., and Sansoni, J.V. PONNTJTHIJRAI el al., Appellants, and IN. B. JT1HAR et al.,
Respondents
S. C. 145 A-B—D. C. Trincomalee, 5170
Rei vindicatio action—Addition of parties—Right of a third party to intervene pendingaction—Civil Procedure Code, ss. 17, 18, 79.
If the plaintiff does not object, a third par‘y should be allowed to intervenein a pending rei vindicatio action where he is not in possession of the laud indispute and seeks to obtain a declaration of title and consequential relief inhis own favour.
.A.PPEALS from a judgment of the District Court, Trincomalee.
R. S. R. Coomaraswamy, with E. B. Vannitamby, for 1st Defendant*Appellant in S. C. No. 145 A and for 2nd Defendant-Appellant inS. C. No. 145 B.
N.E. Weerasooria, Q.C., with J. N. David, for 3rd Defendant-Respondent in both appeals.
M.I. M. Cassim, with M. T. M. Sivardeen, for Plaintiff-Respondentin both appeals.
Cur. adv. vult.
December 21, 1959. Sansoni, J.—
These are two connected appeals from an order allowing the 3rddefendant-respondent to intervene in an action between the plaintiffand the 1st and 2nd defendants-appellants. The plaintiff sued for adeclaration of title to a particular land, tracing title from one MeeraLebbai Tampi who is said to have died leaving the plaintiff as his soleheir. He pleaded that the first defendant asserted title to the land inFebruary 1956 and transferred the land to the 2nd defendant. Heclaimed a declaration of title, ejectment, and restoration of himself topossession.
The first defendant in his amended answer set out a different chainof title, and ultimately pleaded a purchase by him from one WellawattageGunawardene Dissanayake upon deed No. 646 dated 14th November
The second defendant pleaded a purchase by him for valuableconsideration, presumably from the first defendant though he does notexpressly say so. He also pleaded that he was not a necessary partyand that no decree obtained by the plaintiff can bind him, though hegave no reasons for this strange plea.
After the case had been fixed for trial, the intervonient filed a statem entof claim setting out his title which ends with a purchase by him on deedNo. 11648 dated 21st November 1928. He attacked deed No. 646 dated
376
SANS ONI, J.—Ponnuihurai v. Juhar
14th November 1955 as a false document, and pleaded that he was theowner of the land. He claimed that the 2nd defendant had, since hisalleged purchase, cut down trees on the land to the value of Rs. 5,000.In his prayer he asked that he be added as a party, that he be declaredentitled to the land, that the defendants be ejected from it and he beplaced in quiet possession, and for damages in Rs. 5,000. In view ofcertain observations I shall make, it is important to remember at thisstage that the plaintiff neither consented nor objected to the intervention,though both defendants objected to it. After inquiry, the learnedjudge allowed the intervenient’s application and directed that he beadded as the 3rd defendant. It is from this order that the appealshave been taken.
It was pointed out as far back as 1895 in Meideen v. Banda1 that thelanguage of Section 18 of the Civil Procedure Code corresponds with thelanguage of Order 16 Ride 11 of the Rules of the Supreme Court ofEngland, and both in that case and in later cases guidance has been soughtfrom English decisions where similar questions arose for decision.Order 16 Rule 11 reads : “ No cause or matter shall be defeated by reasonof the misjoinder or nonjoinder of parties, and the Court may in everycause or matter deal with the matter in controversy so far as regardsthe rights and interests of the parties actually before it. The Courtor a Judge may, at any stage of the proceedings, either upon or withoutthe application of either party, and on such terms as may appear to theCourt or a Judge to be just, order that the names of any parties impro-perly joined, whethei as plaintiffs or defendants, be struck out, and thatthe names of any parties, whether plaintiffs or defendants, who ought. to have been joined, or whoso presence before the Court may be necessaryia order to enable the Court effectually and completely to adjudicateupon and settle a1! the questions involved in the cause or matter, beadded.” The rest of the rule need not be quoted as it does not affectthe present matter. The relevant provisions of Sections 17 and 18 ofthe Code read :
“ 17. No action shall be defeated by reason of the misjoinderor nonjoinder of parties, and the court may in every action deal withthe matter in controversy so far as regards the rights and interestsof the parties actually before it.
Nothing in this Ordinance shall bo deemed to enable plaintiffs tojoin in respect of distinct causes of action.
If the consent of any one who ought to be joined as a plaintiff cannotbe obtained, he may be made a defendant, the reasons therefor beingstated in the plaint.”
“ 18.(1) The court may on or before the hearing, upon the applica-
tion of either party, and on such terms as the court thinks just, orderthat the name of any party, whether as plaintiff or as defendantimproperly joined, be btruck out; and the court may at any time
1 {1895) 1 N. L. R. page 51.
SANSONI, J.— Ponnuthurai v. Juhar
377
either upon or without such application, and on such terms as thecourt thinks just, order that any plaintiff be made a defendant, orthat any defendant be made a plaintiff, and that the name of anyperson who ought to have been joined, whether as plaintiff or defendant*or whose presence before the court may be necessary in order toenable the court effectually and completely to adjudicate upon andsettle all the questions involved in the action, be added.”
It is not feasible to consider in detail the many local decisions dealingwith the subject of addition of parties, nor is it easy to extract anyguiding principles from them as each case seems to have been decidedon its particular facts. The question that arises on the present appealsis this : the plaintiff not objecting, can a third party claim to intervenein a pending rci vindicatio action where he proposes to obtain a declarationof title and consequer tial relief in his own favour ? I shall first considerthe matter as though the plaintiff had objected to the intervention.The answer would have then depended on the meaning one gives tothe words “ any person whose presence before the court may be necessaryin order to enable the court effectually and completely to adjudicateupon and settle all the questions involved in the action ” for obviouslythe intervenient in this case is not a person who “ ought to have beenjoined
The English rule has been closely analysed in a learned judgment byDevlin J. in Amon v. Raphael Tuck and Sons Ltd.1, which was a case wherethe plaintiff opposed the intervention. The judgment was followedand applied by Willmer J. in Miguel Sanchez and Co. v. The Result2.Devlin J. reviewed all the authorities and pointed out that two viewshad been expressed on the meaning of the words in question. Thebroader view is that the court has a wide discretionary power to joinany person who has a claim to the subject matter of the action, forsuch a person can urge that the question involved in his cause of actioncannot be settled without joining him. Thus if the subject matter ofthe action is the ownership of movable or immovable property, sucha person should be allowed to come in and put forward his claim to it.The narrower view emphasises that the presence of the intervenientmust be necessary for the prescribed purpose of deciding and settlingquestions involved in the action as it stands between the existing parties.On this view, the test whether a person should be added or not becomesa matter of jurisdiction and not of discretion. The following wordsof Lindley L.J. in Moser v. Marsden3 were quoted by Devlin J. asfurnishing a clue to the solution of the problem : “In order to properlyunderstand the rule we must look at the whole of it. It bogins bysaying ‘No cause or matter shall be defeated by reason of the misjoinderor nonjoinder of parties 5—that is the key to the whole question : If thecourt cannot decide the question without the presence of other parties,the cause is not to be defeated, but the parties are to be added so as to'put the proper parties before the court.” Ultimately the narrower
1(1956)1 Q. B. 357.
(1958) 2 W. L. R. 725.
3 (1892) 1 Ch. 487.
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SANSONI, J.—Ponnuthurai v. Juhar
construction of the rule was adopted by Devlin J. who laid down thetest to determine whether an intervention should be allowed when theplaintiff objects to it as being : “ May the order for which the plaintiffis asking directly affect the intervener in the enjoyment of his legalrights? The rule was regarded as giving effect to the practice inequity, which was to join as parties all those whose presence was necessaryto complete and effectual justice, as compared with the common lawpractice, which was to join only parties who should have been joined,such as joint contractors.
If this test were to be applied to the present action, but still on thebasis that the plaintiff had objected, I think that the application forintervention would fail. The intervenient will not be affected inthe enjoyment of his legal rights by any judgment that may be givenin the action between the. plaintiff and the 1st and 2nd defendants. Iwould stress the point that the intervenient does not claim that he isnow in possession of the land in dispute, for in his prayer he asks thatthe plaintiff and the defendants be ejected. Execution of a decree forpossession which the plaintiff may obtain would therefore not haveaffected him. But what is the position where, as in this case, the plaintiffdoes not object to the intervention ? And in this instance I think thatwhen the plaintiff does not object he may be taken to consent.
• Devlin J. warned that the test laid down by him cannot be appliedto every sort of application to join parties. He pointed out that hewas not attempting to lay down, or holding that the authorities lay down,?c a test of universal efficacy ”. If a plaintiff wants to add a defendanthe will not have to show that the new defendant will be directly affectedby an order in the action as then constituted, but only that he cannotget effectual and complete relief unless the new defendant is added.Similarly, where a defendant seeks to join a new defendant he needonly show that he cannot effectually set up a defence which he wishesto set up unless the new defendant is joined or unless the order madebinds the new defendant. Ho added : “ It is not that the constructionof the rule differs according to the circumstances. The constructionof the rule is and must be the same in all circumstances ; but the testthat is appropriate to determine whether a party is necessary or notmay vary according to the circumstances”. Now in this action theplaintiff is dominus litis, and just as he cannot be compelled to fight alitigant not of his own choice if he objects to an intervenient cominginto the case, I also think that where he does not object to the inter*vention, such intervention should be allowed unless there is something inthe rule which forbids it. It may be that the plaintiff thinks that he willnot get effectual and complete relief unless the intervention is allowedand the validity of the deed No. 646 dated 14th November 1955 isinquired into ; or he may think that the issue of prescriptive possessionwould be most conveniently decided, from his point of view, in oneaction instead of two.
WEERASOORIYA, S. P. J.—Basnayake v. Inspector of Police
379
Counsel for the appellants objected that his clients would be hamperedin pleading in reply to the claim put forward by the added party. Ido not think that he need have any fears on this ground. Under Section79 of the Code the court can allow further pleadings in order that thereal issues between the parties may be raised, and if the answer filedby the added party requires it there should be no objection to amendedpleadings being filed by the 1st and 2nd defendants in order to meetthat answer.
I would therefore dismiss these appeals with costs.
Basnayake, C.J.—I agree.
Appeals dismissed.