134-NLR-NLR-V-56-SINNATAMBY-et-al-Appellant-and-KANDIAH-et-al-Respondents.pdf
Sinnathamby v. Kandiah
035
1954Present: Weerasoorlya J. and de Silva J.SINNATHAMBY el al.. Appellants, and KANDIAH el ul.,Respondents-S’. ('. 42—D. C. (Inly.) Clunmkachcheri, 261
Civil I’rocaturc Code—Necessary party—Refusal to join in action—Duty of Court toadd mtch jxtrty—Sections 17, 18 (/), 473.
Section 473 of the Civil Procedure Code provides that where there are severaltrustees they sliall all be made parties to an action instituted by one or more ofthoin. Hence, if one of them refuses to join in the action it is the duty of theCourt, acting under section 18 (1), to add him as a party defendant.
./Appeal from an order of the District Court, Chavakaeheheri.
Benganathan, for the 1st and 2nd plaintifFs-appellants.
J.V. C. Nathaniel, for the 1st, 2nd, 3rd, 22nd, 24th, 26th—29th, 31stand 32nd defendants-respondents and the eitee-respondent.
Cur. adv. vult.
036
WEERASOORIYA J.—Sinnatiuimbtj v. Kandiah
September 16, 1954. Weerasooriya J.—
The citee-respondent was originally joined as the 3rd plaintiff in thisaction on the basis that he and the other two plaintiffs are the dulyappointed trustees of the Nellikinathaddy Kandaswamy Kovil at Mirusu-vil.,
In the course of the proceedings in the lower Court it was discoveredthat the proxy filed by the proctor'acting purportedly on behalf of allthree plaintiffs had not been signed by the‘2nd plaintiff and the citee-respondent. The 2nd plaintiff has since' made good the omission bygranting a proxy to the same proctor ratifying all acts done and authorisingthe proctor to act on his behalf. The citee-respondent has, however,refused to do likewise and the teamed District Judge struck his name outof the plaint. With regard to the application of the 1st and 2nd plaintiffsthat in the circumstances the citee-respondent be made a party defendantthe teamed District Judge stated that this could not be granted since itdid not appear to be necessary and proper that the citee-respondent shouldbe made a party defendant. From this order the 1st and 2nd plaintiff'shave appealed.'.
S. 473 of the Civil Procedure Code provides that where there are several. trustees they shall all be made parties to an action by one or more of them.Hence, even if (as a result of what has transpired) the action is regardedfrom its inception as having been filed by the 1st and 2nd plaintiffs alone,there was a non-joinder of a necessary party in the person of the citee-respondent which, however, in view of 8. 17 of the Code, would not be areason for defeating the action, and the remedy is to be found in S. 18 (1)which empowers the Court inter alia to a4d as a party the name of anyperson who ought to have been joined (in the first instance) whether asplaintiff or defendant.
While the exercise by the Court of the powers conferred under S. 18 (1)is discretionary, I am of the opinion that in this case the learned DistrictJudge should, in view of the provisions of S’. 473, have added the citee-respondent as a party defendant. The order of the learned District Judgeis therefore set aside and the case is remitted to the lower Court so that thecitee-respondent may be added as a party defendant and the actionproceeded with thereafter according to law, .
It was not urged before us by learned counsel who appeared for thorespondents that the addition of the citee-respOndent as a defendant wouldin any way be prejudicial to the rights of the respondents as at the dateof the filing of the action.'
The 1st, 2nd, 3rd, 22nd, 24th, 26th—29th, 31st, 32nd defendants and thecitee-respondent will pay to the appellants the costs of this appeal andof the inquiry in the Court below.
de Silva J.—I agree.
Order set aside.