025-SLLR-SLLR-1985-V2-ARUMUGAM-COOMARASWAMY-v.-ANDIRIS-APPUHAMY-AND-OTHERS.pdf
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Coomaraswamy v. Andiris Appuhamy
219
ARUMUGAM COOMARASWAMY
v.ANDIRIS APPUHAMY AND OTHERS
SUPREME COURT.
SHARVANANDA. C. J.. RANASINGHE. J AND ATUKORALE, J.
S. C APPEAL No. 38/84.
A. No. 56/83.
C. ANURADHAPURA 10581/MB.
MAY 23, 1985
Addition of parties – Section 18 (1) Civil Procedure Code.
In deciding whether the addition of a new party should be allowed under section 18(1)of the Civil Procedure Code the wider, construction adopted by English Courts is to bepreferred. Whenever a Court can see in the transaction brought before it that the rightsof one of the parties will or may be so affected that other actions may be brought inrespect of that transaction the Court has the power to bring all the parties before it anddetermine the rights of all in one proceeding. It is not necessary that the evidence onissues raised by the new parties being brought in should be exactly the same. It issufficient if the main evidence and the main inquiry will be the same. Even, if thenarrower construction is adopted a person who has to be bound by the result of theaction, or has a legal right enforceable by him against one of the parties to the actionwhich will be affected by the result of the action should be joined ; so also where thequestion raised by the party seeking to be added is so inextricably mixed with thematters in dispute as'to be inseparable from them and the action itself cannot bedecided without deciding it, then the addition should be made ; if the plaintiff can showthat he cannot get effectual and complete relief unless the new party is joined or adefendant can show that he.cannot effectually set up a defence which he desires to setup unless the new party is joined, the addition should be allowed.
Cases referred to:
Meideen v. Banda (1895) 1 NLR 51.
Ponnuthurai at al v. Nona BulkiesJuhar (1959) 57 CLW 79. 66 NLR 375
The Chartered 8ank v. L. N. de Silva (1964) 67 NLP 135.
Amon v. Raphael Tuck and Sons Ltd. {1956} 1 AH ER 273.
Byrne v. Browne and Dipfock (1889) 22 QBD 657.
Montgomery v. Foy. Morgan and Co. {1895) 2 O.B 321.
Norris v. BeaRey(1877) 2 CPO 80. 83.
Fire, Aufo Marine Insurance Co. Ltd v. Greene [1964] 2 AH ER 761.
Gurtnerv. Circuit [1968] 1 All ER 328.
Weerapperuma v. De Silva (1958) 61 NLR 481
G. A. Kalutara v. Gunaratna (1967) 71 NLR 58.
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11985} 2 Sri LB.
APPEAL from the judgment of the Court of Appeal.
S. Mahenthfran for petitioner-appellant
S. W. B. Wadugodapivya. AdditionalSofc/fw-Genera/with S. Hattiga. S.C. for 2nd and3rd respondents.
P. K. Uyanage for plaintiff-respondent.
Cur. adv vult.
June 19.1985.
RANASINGHE, Jj
The appellant, who had obtained a lease of the land, which is thesubject-matter of these proceedings, from the AnuradhapuraPreservation Board, entered into a Lease Bond bearing No. 274 of
(XI) with the 2nd respondent and also a Rent-PurchaseTenancy Loan Agreement with the 3rd respondent on 10.10.1973, interms of which'he was to construct a house on the said land with theloan so obtained by him from the said 2nd and 3rd respondents andwas to repay the said amount by monthly instalments. The petitionerhas, after a period of time, fallen into arrears ; and, when the 2ndrespondent was preparing to take steps against him the petitioner hadentered into an agreement on 4.4.76. (X2). with theplaintiff-respondent, and the members of his (plaintiff-respondent's)family, to sell the said land and premises to the plaintiff-respondent.The plaintiff-respondent had thereupon paid all the arrears and alsothe other sums of money due from the appellant to the 2nd and 3rdrespondents. Thereafter the petitioner, together with his wife andchildren, requested, in terms qf the aforesaid agreement X2. the 3rdrespondent, on 10.10.79, to transfer the said land and premises tothe plaintiff-respondent. The 3rd respondent had then entered into alease with the plaintiff-respondent, in respect of the said land andpremises, upon the document X3,-on 1.6.80. The plaintiff-respondenthad proceeded to pay the instalments regularly , but, on 28.7.82. the3rd respondent had. by his notice X4, informed theplaintiff-respondent that he would be cancelling the lease X3 enteredinto with the plaintiff-respondent.
The plaintiff-respondent thererupon instituted these proceedings on12.10.82 in the District Court, against the 2nd and 3rd respondents,to have the aforesaid notice X4 declared null and void.
SCCoomaraswamy v. Andiris Appuhamy fRanasinghe. J.)221
The 2nd and 3rd respondents, in their answer filed in February1983; admitted.the agreement X3, but denied that the agreement X2was revoked by them. They also admitted the notice X4. They pleadedthat the agreement X3 has been cancelled by them with effect from
9.82. These respondents further moved that, as the appellant was,by virtue-of the aforesaid agreements – dated 23.9.1968, (XI) anddated 10.10.73 – the person entitled to the said land and premises,the appellant should be made a party to the said proceedings.
The appellant himself has, by his application made on 4.5.83,sought to intervene in the said proceedings. The position taken up byhim briefly is that the agreement 2, entered into by him with theplaintiff-respondent, is vitiated by fraud and duress on the part of theplaintiff-respondent, and that the lease, X1, entered into by theappellant with the 2nd and 3rd respondents is still valid and operative,and that, therefore, he. the appellant, is entitled to have himself addedas a party to the.said proceedings under the provisions of sec. 18(1)of the Civil Procedure Code. The plaintiff-respondent opposed the saidapplication. After inquiry the learned District Judge dismissed theappellant's said application ; and the Court of Appeal has affirmed thesaid order of dismissal.
The relevant provisions of sec. 18 (1) of the Civil Procedure Code,under and by virtue of which the appellant seeks to be added as aparty to these proceedings, which the plaintiff-respondent hasinstituted only against the 2nd and 3rd defendant-respondents, are as
follows :
"The Court may on or before the hearing upon the application ofeither party and on such terms as the Court thinks just, order that
the namebe struck out, and the Court may at any time either
upon or without such application and on such terms as the Court
thinks just, orderthat the name of any person who ought to
have been joined, whether as plaintiff or defendant or whosepresence before the court may be necessary in order to enable thecourt effectually and completely to adjudicate upon and settle all thequestions involved in the action, be added*.
That the language of sec. 18 of the Civil Procedure Codecorresponds with the language of the relevant Rules of the SupremeCourt of England, and that guidance could, therefore, toe sought from
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English decisions upon similar questions has long been accepted bythe Courts of this Island ; Meideen v. Banda (1); Ponnuthurai et at. v.Nona Bulkies Juhar (2);. The Chartered Bank v. L. N. de Silva (3).
The English rule, governing the addition of persons as parties toproceedings which have already been instituted in court, was analysedby Devlin, J. in the year 1955. in the Queen's Bench Division in thecase of Amon v. Raphael Tuck and Sons Ltd. (4). An exhaustiveconsideration of the earlier authorities on the subject resulted inDevlin, J. concluding that they fall into two groups : those that favoura 'narrower construction' and those that have adopted a 'widerconstruction" of the relevant rule regulating the addition of persons asparties to pending proceedings. The 'wider construction' wasexpounded by Lord Esher in the year 1889, in the case of Byrne v.Browne and Diplock (5) as follows :
'One of the chief objects of the Judicature Act was to secure that,whenever a Court can see in the transaction brought before it thatrights of one of the parties will or may be so affected that under theforms of law other actions may be brought in respect of thattransaction, the Court shall have power to bring all the parties beforeit, and determine the rights of all in ong proceeding. It is notnecessary that the evidence in the issues raised by the new partiesbeing brought in should be exactly the same ; it is sufficient if themain evidence and the main inquiry will be the same, and the Courtthen has power to bring in the new parties, and to adjudicate in oneproceeding upon the'’rights of all the parties before it. Another greatobject was to diminish the cost of litigation. That being so, the Courtought to give the largest construction to those Acts in order to carryout as far as possible the two objects I have mentioned."
Six years later, in 1895, Lord Esher once again adopted the sameconstruction in the case of Montgomery v. Foy, Morgan and Co. (6) inthese words :
'where there is one subject-matter out of which several
disputes arise, all parties may be brought before the court, and allthose disputes may be determined at the same time"
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Coomaraswamy v. Andiris Appuhamy (Ranasinghe, J.)
223
The earliest exposition of the “narrower construction' of the saidRule seems to have been in 1877 by Lord Coleridge, C. J., in the caseof Norris v. Beazley{7) :
“It seems to me to be correctly argued that those words plainlyimply that the defendant to be added must be a defendant againstwhom the plaintiff has some cause of complaint which ought to bedetermined in the action, and that it was never intended to applywhere the person to be added as defendant is a person againstwhom the plaintiff has no claim and does not desire to prosecuteany.'
In Amon's case (supra) the plaintiff claimed damages from, and alsoan injunction against the defendants on the basis : that he invented anew design of adhesive dispenser in the shape of a pen, known as theFastik pen : that he disclosed the 'know-how* of that pen to thedefendants in confidence during negotiations between them in regardto the marketing of the pen by the defendants for the plaintiff: thatthe negotiations failed : that there was an implied contract that thedefendants were to treat the information given to them by the plaintiffas confidential: that the defendants have, in breach of such contract,made use of such information to manufacture an adhesive dispensercalled the Stixit pen : that the said Stixit pen contained threedistinctive features of the plaintiff's Fastik pen. The defendants movedcourt to join as a defendant D who alleged that he, D., was theinventor of the said Stixit pen, and that the defendants were undercontractual obligation to him to manufacture and distribute the Stixitpen in certain territories. After an exhaustive consideration of all earlierEnglish authorities Delvin. J., himself came down on the side of the'narrower construction", formulating the test to be adopted in thisway at page 290 :
'May the order for which the plaintiff is asking directly affect theintervener in the enjoyment of his legal rights ?’
Having so formulated the test to be employed Delvin, J., proceeded toexplain it further thus :
'It must not be supposed that the test which I have employed canbe applied to every sort of application under the rule, and I am notattempting to lay down, or holding that the authorities lay down, atest of universial efficacy. A plaintiff may in the first instance, join asa defendant any person ^against whom the right to any relief is
alleged to exist'If, after he has issued his writ, he wants to
join another defendant, no doubt he will have to prtxeed under r.
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11, but he will not have to show that the new defendant will bedirectly affected by an order in the action as it is- then constituted :what he generally shows is that he cannot get effectually andcompletely the relief for which he asks unless the new defendant isjoined, and that, in that sense, the new defendant is a necessaryparty to the action. Likewise, a defendant who seeks to join anotherdefendant does not inevitably have to show that the new defendantwill be directly affected by an order in the action as it is constituted.He may succeed if he can show that he cannot effectually set up adefence which he desires to set up unless the new defendant isjoined with it, or unless the order made binds the new defendant. Itis not that the construction of the rule differs according tocircumstances. The construction of the rule is and must be, thesame in all circumstances ; but-the test that is appropriate todetermine whether a party is necessary or not may vary accordingto the circumstances.'
At page 287 Devlin, J., also expressed the view that:
‘the only reason which makes it necessary to make a person aparty to an action is sc; that he should be bound by the result of theaction, and the question to be settled, therefore, must be a questionin the action which cannot be effectually and completely settledunless he is a party *
On an application of the test so formulated by him to the facts of thecase before him, as set out earlier. Devlin. J.. concluded : that the testhas been satisfied : that not only the commercial interests of D.. butalso his (D's) legal rights would be affected : that he has jurisdiction tomake the order: that, having regard to the questions involved in thecase, it is proper that, in the e&ercise of his discretion, he should makethe order prayed for.
The decision in Amon's case (supra) was followed in 1964, also inthe Queen's Bench Division in the case of Fire. Auto Marine InsuranceCo. Ltd., v. Greene (8), where' Stephenson, J., took the view that aperson cannot be added as a party against the wishes of the plaintiffunless such person was –
. . . at least able to show that some legal right enforceable byhim against one of the parties to the action or some legal dutyenforceable against him by one of the parties to the action will beaffected by the result of the action.”
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Coomaraswamy v. Andirts Appuhamy (Ranasinghe, J.j
225
The aforementioned constructions placed upon the said rule,regulating the addition of parties in proceedings which are pending, bythe English courts have been considered by our courts in severalcases. Sansoni, J., had occasion to deal with it in the case ofPonnuthurai et at. v. Nona Bulkies Juhar et al, (supra). The plaintiff inthat case instituted an action against two defendants for a declarationof title and for restoration of possession. The 1st Defendant claimedtitle upon a different chain of title, and the 2nd defendant pleaded apurchase from the 1st defendant. After the case was fixed for trial theimervement moved to be added on the basis that he was entitled tothe land on a separate chain of title and that the title deed relied on bythe 1 st defendant was a false document. He too moved for adeclaration of title m his favour and an ejectment of the defendantsfrom the land The plaintiff did not object; and the District Courtallowed the intervenient’s application. In appeal, Sansoni. J., after aconsideration of the judgment of Devlin, J., in Amon's case (supra)took the view that, although, if the test formulated in Amon's case(supra) were to be applied to the facts of that case on the basis thatthe plaintiff objects to the application for addition, the intervenient’sapplication must fail as the intervement. who was not in possession ofthe land in dispute, would not be affected in the enjoyment of hisrights by any judgment that may be given in the action between theplaintiff and the 1st and 2nd defendants, yet. the intervention shouldbe allowed as the plaintiff himself does not object and as there isnothing in the rule which forbids it. The appeal was accordinglydismissed.
The provisions of sec. 18(1) were also considered by the SupremeCourt in October 1 964 in the case of The Chartered Bank v. L N. deSilva (supra) In that case the plaintiff, who had guaranteed a loan fromthe Bank to the 1st and 2nd defendants, sued the two defendants forthe recovery of the sum of money which he had paid to the Bank uponthe Bank demanding payment from him as the guarantor of the twodefendants. The defendants denied liability on the ground that theBank had. in breach of certain terms, wrongly called upon the plaintiffto pay On the date of trial the plaintiff and the two defendants allmoved to add the Bank as a party to the action under sec 18 (1)C.P.C as the presence of the Bank was necessary "for the completeand effectual adjudication of all matters in the case". The Bankobjected ; but the application was allowed by the District Court. Inappeal, the order of the learned District Judge was set aside on the
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ground that: the cause of action against the defendants was quitedifferent from the cause of action against the Bank: the Bank wasundoubtedly a material witness, and the process of the court wasavailable to the parties to compel the Bank to produce the necessarydocuments : the Bank was not liable to be added as a party. SriSkanda Rajah, J., referring to the decision in Amort's case (supra)observed that the 'more restricted interpretation' referred to in thatcase "has found favour in recent decisions' and that the Indian caseswhich follow the Montgomery case (supra) "can no longer be regardedas expressing the correct interpretation of the provision underconsideration". Alles, J., who concurred with Sri Skanda Raja, J. thatthe Bank should not be joined as a party to the said proceedings, alsoagreed 'that the principle laid down in Amon's case and followed inthe later decisions should be preferred to the broad generalisation ofLord Esher in Montgomery's case.'
A careful study of the judgments delivered in The Chartered Bankcase (supra) reveals that the decision of the two judges was largely, ifnot wholly influenced by their view that the English Courts have movedaway from the 'broad generalisation' of Lord Esher in 1895, andhave, in recent times, favoured the "more restricted interpretation"adopted by Devlin, J. in Amon's case (supra) and that the viewsexpressed by Lord Esher cannot then be regarded as expressing thecorrect interpretation of the said rule. The most recent decision of theEnglish Courts, which was cited to us at the hearing of this appealupon this question – the decision {Denning, M.R. and Diplock, L.J.) inthe case of Gurtner v. Circuit (9) is one which has been made not onlyseveral years later, on 14.12.1967, but is also a decision of the Courtof Appeal.
There are two other local decisions which need to be referred to.One is the decision in the case of Weerapperuma v. De Silva (10)decided on 28.7.58 in which Basnayake. C.J. formulated the principlethus :
'When a question is so inextricably mixed with the matters indispute in an "action" as to be inseparable from them and the actionitself cannot be decided without deciding it. the question may besaid to be involved in the action. Any question arising on the caseset up by an mtervenient in his petition and not arising in the case set•up in the pleadings of the parties is not a question involved in theaction "
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The other is the case of G. A., Kalutara v. Gunaratna (11). Aco-owned land had been used by all the co-owners for several years asa distillery and a warehouse for manufacture of arrack ; and, when oneof the co-owners brought an action against the Government Agent torestrain him frxim issuing or renewing a licence to manufacture arrackin favour of S, another co-owner, alleging that the Government Agentand S were acting in concert wrongfully and unlawfully. S was held tobe entitled to be added as a party to the said proceedings institutedagainst the Government Agent. Manicavasagar. J. based the decisionto permit the addition on the fact that there was also a claim for reliefwhich would affect S in the enjoyment of his legal rights.
The local decisions in the case of Weerapperuma (supra), decidedon 28.7 58, Ponnuthurai (supra) decided on 21.12.59, TheChartered Bank (supra) decided on 6.10.64 and G. A. Kalutara(supra) decided on 19.3.67, could all be considered as havingpreferred the "narrower construction" placed upon the Rule regulatingthe addition of parties in pending proceedings in England. Even so,Sansoni, J. allowed the addition in Ponnuthurai's case (supra) as theplaintiff himself did not object, and as there was nothing 'in the rulewhich forbids it" ; and Manicavasagar, J. in the case of theGovernment Agent of Kalutara (supra) observed that the ground, onwhich the addition was in fact being allowed in that case, was :
"not the only rule which would enable the Court to act under sec.
18."
In Gunner's case (supra) the plaintiff, who had been severely injuredon being run down by the motor cycle ridden by the defendant, suedthe defendant for damages. When the plaintiff issued writ against thedefendant, the defendant was found to have gone to Canada aboutthree years previously. The defendant's insurers could not also befound. Thereafter, upon substituted service being effected on thedefendant, the Motor Insurers’ Bureau, which had entered into anagreement with the Minister of Transport in 1964 that, if a judgmententered in favour of an injured person against a motorist is notsatisfied in full within seven days, the Bureau would pay the amount ofthe judgment to the injured person, applied to be added as adefendant. The Court of Appeal, which was called upon to considerwhether the said Bureau could be added as a defendant in the saidproceedings, held that the said Bureau, should b^ added as a
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defendant on its undertaking to pay any damages that might beawarded to the plaintiff. Denning, M.R. was not disposed to acceptthe "narrower construction' advocated by Devlin, J. in Amon's case(supra) and followed by Stephenson, J. in the Fire, Auto MarineInsurance Co. case (supra) but preferred to place the "widerconstruction' which had found favour with Lord Esher in Byrne v.Browne (supra) – and also later in the Montgomery's case (supra).Said Denning, M.R. at page 332 :
"It seems to me that, when two parties are in dispute in an actionat law and the determination of that dispute will directly affect athird person in his legal rights or in his pocket in that he will be boundto foot the bill, then the Court in its discretion may allow him to beadded as a party on such terms as it thinks fit. By doing so the courtachieves the object of the rule. It enables all matters in dispute 'tobe effectually and completely determined and adjudicated upon"between all those directly concerned in the outcome."
Diplock, L.J., who too agreed that the intervenient, the MotorInsurance Bureau, should be added, took the view that neither the testadopted by Devlin, J. in Amon's case (supra) nor that adopted byStephenson, J., in the Fire, Auto, Marine Insurance case (supra)should be treated as comprehensive. Devlin, J. approached thequestion from the standpoint of the observance of the principles ofnatural justice : that the Bureau s obligation, though not enforceableby the plaintiff, was, however, enforceable by the Minister who washimself not a party to the action : that the rules of natural justicerequire a person, who is to be bound by a judgment in an actionbrought against another party and liable to the plaintiff on thejudgment, should be entitled to be heard in the proceedings in whichthe judgment is to be obtained : that a matter in dispute is noteffectually and completely "adjudicated upon' unless the rules ofnatural justice are observed and all those who will be liable to satisfythe judgment are given-an opportflnity of being heard , and concludedthat:
"So long as the judgment is legally enforceable against the personsought to be added either directly by the plaintiff or indirectly for hisbenefit by the Minister, the court has jurisdiction to add such personas a party'*
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Devlin, J. emphasised that his judgment is based on the specialposition of the Bureau under their contract with the Minister, and isnot intended to have any wider application than to that unique legalsituation.
Gunner's case (supra) does not seem to have been brought to thenotice of the Court of Appeal; for. it has not been considered in thejudgment of the Court of Appeal.
On a consideration of the respective views, referred to earlier, whichhave been expressed by the English Courts in regard to the nature andthe extent of the construction to be placed upon the rule regulating theaddition of a person as a party to a proceeding which is alreadypending in court between two parties, the 'wider construction' placedupon it by Lord Esher, which has been set out above, commends itselfto me. The grounds which moved Lord Esher to take a broad view,viz. : to avoid a multiplicity of actions and to diminish the cost oflitigation, seem to me, with respect, to be eminently reasonable andextremely substantial. Lord Esher's view, though given expression toalmost a century ago, is, even to-day, as constructive and asacceptable. The plaintiff is undoubtedly the dominus litis and shouldnot lightly be made to battle it out with one whom he himself did notchoose to be his adversary in the proceeding he initiated. Even so, thesituation which is brought about by the said rule being made operativein this manner will not cause prejudice to the plaintiff. Ontfhe contraryit could and would enure to his benefit.
The plaintiff-respondent has. in the plaint dated 12.10.1982,averred that the appellant, who had entered into the agreement XIwith the 2nd and 3rd respondents, on 4.4.76 entered into theagreement X2 with the plaintiff-respondent : that, after theplaintiff-respondent paid all the arrears that were due from theappellant under the said agreement X1. the appellant, and theappellant's wife and children, on 10.10.79, requested the 2ndrespondent to transfer the land and premises in question to theplaintiff respondent: that, in pursuance of such request, the 2ndrespondent then cancelled the agreement, which the 2nd respondenthad earlier entered into with the appellant, and, on 1,6.80. enteredinto the agreement X3, with the plaintiff-respondent: that the 2nd and3rd respondents have sent the plaintiff-respondent the notice X4because the appellant is said to have sought to withdrav?the consent.
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which the appellant had given to the transfer of the said land andpremises to the plaintiff-respondent, on the basis that such consenthad been given under duress : that the appellant has made the saidapplication three years after he had given his consent in October1979 : that the respondent's conduct in acceding to such a request ismost unfair.
The basis of the plaintiff-respondent’s claim is therefore : that the2nd and 3rd respondents had executed a transfer of the land andpremises which the appellant was entitled to, in his name, with theconsent of the appellant: that the said respondents are now seekingto cancel the said transfer, in view of certain representations which aresaid to have since been made by the appellant : that suchrepresentations should not be accepted by the said respondents.Although the plaintiff-respondent had in his prayer to the plaint prayedfor the execution of a deed of transfer in his name upon the paymentby the plaintiff-respondent of any balance sum of money due to the2nd and 3rd respondents from the appellant, and in the alternative, forpayment of a sum of Rs. 150,000 to the plaintiff-respondent ascompensation, yet, at the inquiry held on 9.5.83 before the learnedDistrict Judge, learned Counsel for the plaintiff-respondent withdrewthe claim for such relief and confined the relief prayed for to that setout in paragraph {a) of the prayer to the plaint viz. : a declaration thatthe notice X4 is null and void. The basis even for this claim for relief is,as set out earlier, that the agreement, which had been entered intobetween the appellant and the 2nd and 3rd respondents, has beencancelled, and, in its place, another agreement has been entered intobetween him and the 2nd and 3rd respondents at the express requestof, and with the consent, fully and freely expressed, of the appellant.
The 2nd and 3rd respondents admit that they did enter into theagreement X3, of 1.6.80, with the plaintiff-respondent at the requestof the appellant, but they do not accept that the agreement. X1, whichthey had earlier entered into with the appellant has been cancelled-They also plead : that X3 has since been cancelled on 1.9.82, andthat the plaintiff-respondent has no cause of action against the saidrespondents : that, in view of the agreement the 2nd respondent hadentered into with the appellant in 10.10.73, the appellant should bemade a party to these proceedings.
Although the plaintiff-respondent has in his plaint averred that thesaid agreement, XI, which the 2nd and 3rd respondents had enteredinto with the*appellant was cancelled, the 2nd and 3rd respondents
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have, in their answer, repudiated the said plea. The appellant hashimself, in his petition and affidavit praying for intervention, specificallypleaded that the original agreement entered into between him and the2nd and 3rd respondents has not been cancelled and is still in force.
There is no admission or other evidence to establish that either theagreement X1, and/or the agreement said to have been entered on10,10.73 between the 2nd and 3rd respondents and the appellant,has been cancelled. The Court of Appeal had misdirected itself intaking the view that the lease entered into by the appellant with the2nd respondent was revoked at the instance of the appellant.
The agreement X3, upon the basis of which the plaintiff-respondentclaims relief, viz : the declaration set out in paragraph (a) of the prayerto the plaint, is, on his own pleadings, founded upon the consent,which, the plaintiff-respondent avers, was fully and freely expressed bythe appellant both to the cancellation, by the 2nd and 3rdrespondents, of the agreement, which the appellant had earlierentered into with the 2nd and 3rd respondents, and to the 2nd and3rd respondents thereafter entering into the agreement, X3. with theplaintiff-respondent. The 2nd and 3rd respondents accept the positionthat it was at the request of the appellant that X3 was entered intowith the plaintiff-respondents, but maintain that the earlier agreementwith the appellant was never revoked and that the person, who isentitled to the said land and premises still is the appellant. Theappellant too maintains that he is still the owner of the said premises,and that his consent was obtained by the plaintiff-respondent byduress. On a consideration of the issues that would arise foradjudication upon the pleadings filed by the plaintiff-respondent andthe 2nd and 3rd respondents respectively, paying due regard, at thesame time, also to the position taken up by the appellant himself itseems to me that any decision in these proceedings upon the questionwhether the plaintiff-respondent is the person now entitled, in law, tothe land and premises – an answer to which question is a pre-requisiteto the grant of a declaration as is prayed for by the plaintiff-respondent- will not be a final solution unless and until the appellant himself canbe held to be bound by such decision. Furthermore, the issue relatingto the validity of the consent said to have been expressed by theappellant, and upon which the 2nd and 3rd respondents had enteredinto whatever dealings they have had with the plaintiff-respondent,cannot be effectually decided in the absence of the person whose act
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[1985] 2 Sri L.R.
is being so considered. The validity of such consent cannot, in view ofthe allegations made by the appellant, be resolved by merely callingthe appellant as a witness. Affording the appellant merely the role of awitness will not be adequate for a full and fair determination of theissue relating to the validity of the consent which alone had broughtthe 1 st and 2nd respondents to negotiate the agreement X3 with theplaintiff-respondent. Any decision of these issues in a proceeding, towhich the appellant is not a party and by the decision of which he willnot be bound, will not effectively and finally settle the issue of who isthe person now entitled, in law, to the said land and premises. Theplaintiff-respondent would have to face the appellant sooner or laterbefore his rights can be finally and effectively determined. The factsand circumstances relating to this matter are, therefore, such that theapplication of the 'wider construction', referred to above, makes, inmy opinion, a decision in favour of the appellant the only logicalconclusion.
A consideration of the various tests formulated in the course of thedecisions, referred to earlier, which have adopted the "narrowerconstruction" seems to me to indicate that the facts, andcircumstances relevant to this question could even satisfy a few of thetests so adopted. For instance : the view expressed by Devlin, J., inAmon's case (supra) that 'the only reason which makes it necessaryto make a person a party to an action is so that he should be bound bythe result of the action" : the view expressed by Stephenson, J., in FireAuto Marine Insurance case (supra) that the party to be added mustbe able at least 'to show that some legal right enforceable by himagainst one of the parties to the action …. will be affected by theresult of the action' : the view expressed by the Basnayake C. J. inWeerapperuma's case (supra) that a question is involved in the action‘when a question is so inextricably mixed with the matters indispute …. as to be inseparable from them and the action itselfcannot be decided without deciding it'. and that 'any question arisingon the case set up by an intervenient in his petition and not arising inthe case set up in the pleadings of the parties is not a questioninvolved in the action', may all be satisfied by the appellant in thiscase.
The order of the District Court, dated 9.5.83, and the judgment ofthe Court ofrAppeal. dated 11.5.84, are, therefore, both set aside.
sc
Coomaraswamy v. Andiris Appuhamy (Ranasinghe. J.)
233
The application of the appellant made to the District Court isaccordingly allowed ; and the appellant is directed to be made aparty-defendant to the action instituted in the District Court by theplaintiff-respftndent against the 1 st and 2nd respondents,
The appellant is entitled to the costs of the inquiry held before theDistrict Court, and also to the costs of appeal, both in the Court ofAppeal and in this Court.
SHARVANANDA, C. J. – I agree.
ATUKORALE, J. – I agree.
Appeal allowed.