031-NLR-NLR-V-46-ROCHE-et-al.-Appellants-and-KEERTHIRATNE-et-al.-Respondents.pdf
Roche and Keerthiratne.
97
IMSPresent: Keuneman and Rose JJ.
ROC-ELK et al., Appellants, and KEERTHIRATNE et al., Respondents.66—D. C. (Inty.), Ratnapura, 7,409.
1
Joinder of parlies and causes of action—Action for declaration of title to Crownland—Agreement by Settlement Officer to sell land to plaintiff'spredecessor—Sale of land to defendant pending settlement—Transfpr ofland to plaintiff after settlement Order—Allegations of fraud and conspiracyagainst plaintiffs—Defendant's counter claim—Civil Procedure Code,s. 18.
Plaintiffs instituted this action for declaration of title to land, whichwas originally Crown and was settled on the 1st added party in 1911from whom title passed to the plaintiffs through the 2nd added party.
Defendant in her answer stated that under an agreement dated Sept-ember, 1931, between the 1st added party and the Settlement Officertheformer was declared thepurchaserof theproperty onthe payment
of a sum of money, which was duly paid in 1935; and that thereafterin May, 1938, 1st added party sold the property to certain other personsfrom whom the defendant purchased, in 1941. The defendant pleadedthat on the publication of the settlement order all the rights thereunderenured to her benefit and that the deeds mentioned in the plaint had beenexecuted in fraud and collusion in pursuance of a conspiracy betweentheplaintiffs, the 1stand2nd addedparties and thatthe plaintiffs
and2nd added partyweremere nominees of the 1stadded party.
The defendant moved that the 1st and 2nd added parties be joinedin the action and claimed—
that the plaintiff's action be dismissed and that the defendant bedeclared entitled to the land or in the alternative
that the plaintiffsand1st addedpartybe orderedto execute a
conveyance in her favour of the said premises or to pay damages.
Held, that there was no misjoinder of parties and causes of action.
A
PPEAL from a judgment of the District Judge of Ratnapura. Thefacts appear from the head note.
E. B. Wikramanayake for the plaintiffs, appellants.—All the partiesin this case are not jointly interested in each of the causes of action.The. addition of Dassanaike and Tennekoon as parties is not justified bysection 18 of the Civil Procedure Code and is prejudicial to the plaintiff.In consequence of their addition three actions have been joined in the samesuit, namely, (1) an action for declaration of title to land, (2) an actionrelating to a trust and (3) an action for damages. In the answer of thedefendant the same relief is not claimed against each of the parties. Therehas been a misjoinder of parties and causes of action. The case ofFernando et al. v. Fernando 1 is directly in point. See also OlagappaChettiar v. Reith 3; Sivakaminathan v. Anthony 3 ; Kanagasabapathy v.
(1935) 3 C. L. W. 51.
* (1923) 25 N. L. ft. 173.
Kanagasabai et. al.*.
1 (1937) 39 JV. L. ft. 145.3 (1941) 43 N. Z. ft. 91.J. N. A 9941* {S/60)
98
KEUNEMAN J.—Roche and Keerthiratne.
H. V. Perera, K.C. (with him V. A. Jayasundera), for the defendant,respondent.—The test is not what reliefs the defendant claims againstthe different parties but what cause of action. he has. In order toestablish his allegation of fraud and conspiracy' the two added partieshave to be, and can be rightly, joined. The defendant’s answer disclosesboth a defence and a counter-claim. On the counter-claim the addedparties were rightly brought in—Haramanis v. Haramanis *. In Fernandoet. al. v. Fernando (supra) there were two independent causes of action,but in the present case the two causes of action are alternative. In Hallv. Pelmadulla Valley Tea and Rubber Co., Ltd., et al.* the position wassimilar to the one in the present case but no objection of' misjoinder wasraised. Sections 18 and 33 of the Civil Procedure Code justify theaddition of the two added parties.
E. B. fYikramanayake in .reply cited Palaniappa v. Saminathan et al.3.
Cur. adv. vvlt.
February 15, 1945. Keuneman J.—
The plaintiffs brought this action for declaration of title to Tenne-henyaya, alleging that it was originally the property of the Crown. Theystated that the land was settled on Dassanaike, the 1st added party, bysettlement order of October 17, 1941, and that Dassanaike sold the sameto Tennekoon, the 2nd added party, by deed 1442 of 1942, and Tennekoonin his turn sold to the plaintiffs by deed 560 of 1943.
The defendant in her answer alleged that under Agreement of September2, 1931, entered into between the Settlement Officer and Dassanaike, thelatter was declared the purchaser of the premises in question on payingRs. 400, which sum was paid on March 18, 1935, and that thereafter onMay 16, 1938, Dassanaike sold by deed 2250 to Ellen and Aslin Keerthi-ratne, who by deed 1545 -of October 26, 1939, sold to the partners ofE. G. Adamally & Company, and they in their turn sold by deed 285 ofMay 9, 1941, to the defendant.
The defendant pleaded that on the publication of the settlement orderreferred to in the plaint all rights thereunder enured to the benefit of thedefendant, who became entitled to the premises. For a further answerthe defendant pleaded three matters—
that the deeds mentioned in the plaint had been executed infraud and collusion and without consideration in pursuance of aconspiracy between the plaintiffs, Dassanaike, and Tennekoon, wrong-fully to deprive the defendant of her rights, and that Dassanaike retainedthe beneficial interest in the premises, which did not pass to the nominaltransferees,
that deed 2250 of 1938 from Dassanaike to the Keerthirartnescontained an agreement that Dassanaike would execute a further deedof conveyance or confirmation on the settlement order being granted.The defendant alleged that the deeds in his chain of title had beenduly registered, and that he was entitled to enforce specific performanceof the agreement against the plaintiffs by virtue of section 93 of theTrusts Ordinance;
1 (1907) 10 N. L. R. 332.* (192i) 2»N. L. R. 422.
» (1913) 17 N. L. R. 66 at 60.
KEUNEMAN 3.—Roche and Keerthiratne.
99
•(8) that Dassanaike had been guilty of fraud and wilful suppression• of facts in obtaining the settlement order, and that as the plaintiffswere mere nominees of his the defendant was entitled to be declaredentitled to the premises in question, or in the alternative to recoverdamages assessed at Bs. 20,000 from Dassanaike and the plaintiffs.
In his prayer the defendant prayed (a) that the plaintiffs’ action bedismissed with costs, and in reconvention.
that defendant be declared entitled to the said premises; or in thealternative.
that the plaintiffs and Dassanaike be ordered to execute a conveyancein her favour of the said premises or to pay Rs. 20,000 as damages.
Thereafter the defendant moved that Dassanaike and Tennekoon beadded a parties to the action. The District Judge ordered that theyshould be so added, and the plaintiffs now appeal against that order.
In substance the plaintiffs assert that the court had not jurisdiction toadd the parties' in this case, and that the addition of the parties wouldresult in a misjoinder of parties and of causes of action.
I do not think the plea that the court had no jurisdiction to add' theparties can be maintained in view of the wide language of section 18 of theCivil Procedure Code. No doubt the court has a discretionary power toallow or refuse the addition of new parties, but in this case the DistrictJudge has exercised his jurisdiction in favour of the addition of theparties.
The further point that the addition of the new parties would result inmisjoinder of parties and causes of action requires close consideration.Counsel for the plaintiffs relies upon the finding of Hearne J.in Fernando v. Fernando 1 to the effect that “ where there aretwo defendants and two causes of action, both defendants must bejointly interested in each of the two causes of action ”. Thisview was also taken in Kanagasabapathy v. Kanagasaba 2. Both thesewere two Judge cases. A different view was taken by the majority of athree Judge Court in the JLondon & Lancashire Fire Insurance Go. y. theP. £ O. Co.3. With respect, I am not, as at present advised, able toagree with Hearne J. that this last case should be treated as a twoJudge decision, and it is possible that the matter still remains to bedecided finally. But accepting the proposition in Fernando v. Fernando(supra.) as correct, I have still to consider whether the added parties arenecessary or at any fate proper parties to be joined as regards all thecauses of action raised by the defendant.
For this purpose I think it is necessary to exclude from considerationthe plea of the defendant contained in paragraph 6 of the answer. Thatis only an answer to plaintiffs’ claim, and if it is correct and succeeds itwill result in the dismissal of plaintiffs action. The causes of action wehave to consider are the three causes of action raised by the defendant inreconvention which I have set out earlier.
The first of these definitely charges the plaintiffs and Dassanaike andTennekoon with fraud and collusion in pursuance of a conspiracy, andasserts' that Tennekoon and the plaintiffs are merely nominal transferees
» 39 N. L. R. 145.
3 18 N. L. R. 15.
3 25 N. L. R. 173.
100
KEUNEMAN J.—Roche and Kcerthiralne.
from Dassanaike who retained the beneficial interest in the premises. Ithink it is eminently proper, in view of the charges of fraud, collusion andconspiracy against all these parties, that they should be joined, andcounsel has been unable to show that any prejudice would result to theplaintiffs by their addition. In this connection I may refer to the case ofHaramanis v. Haramanis 1 where, in an action under section 247 of theCivil Procedure Code in which there was an allegation that the deed oftransfer to the defendant had been executed in fraud of creditors, it wetsheld that the grantor to the defendant should be joined as a party, andwhere he was not already joined the court may add him as a partyunder section 18 of the Code.
As regards the second of the causes of action, the defendant claimsspecific performance of a subsidiary agreement in the deed 2250. Ithink it is proper that Dassanaike, the vendor under that deed, shouldbe made a party in respect of this plea, and the subsequent transfereesfrom Dassanaike, viz., Tennekoon and the plaintiffs are also properparties. Counsel for the respondent has cited at least one instance where,on a plea under section 93 of the Trust Ordinance, both the contractingparty and his subsequent transferee have been joined as parties. It istrue that no objection was taken in this instance that there had been amisjoinder of causes of action. On the other hand counsel for theappellant has not cited any authority to show that in such a case therewould be a misjoinder of causes of action, and on principle I am unableto agree that there would be misjoinder in such a case.
The third cause of action charges Dassanaike with fraud in obtainingthe settlement order, and alleges that the plaintiffs are mere nominees ofDassanaike. Ithink this shouldbe read in conjunction withthe first
cause of actionin which there isan allegationthat Tennekoonis alsoa
mere nominee of Dassanaike. In my opinion both Dassanaike andTennekoon are proper parties to be added in respect of this plea. It istrue that relief is only claimed under this cause of action and in theprayer against Dassanaike and the plaintiffs, but I do not think thataffects the question.
I am therefore of opinion that the District Judge had jurisdiction toadd Dassanaike and Tennekoon under section 18 of the Code, and thatthe addition ofthese parties willnot result ina misjoinder ofcausesof
action or be obnoxious to the sections of theCivil ProcedureCode.I
need only add that I have decided the matter entirely on the pleadings.In the course of the proceedings the District Judge may or may not holdthat the defendant has succeeded on any or all of his pleas, and theDistrict Judge may have to distinguish between the various parties on thequestion of their liability, but those are matters which do not arise at thisstage.
The appeal is dismissed. The plaintiffs will pay the costs of thisappeal to the defendant.
Rose J.—I agree.
Appeal dismissed.
110 N. L. R. 333.