(2) Every order for such amendment or for alteration of parties shall state the facts and reasons which together form the ground on which the order is made. And in the case of a party being added, the added party or parties shall be named, with the designation “added party” in all pleadings or processes or papers entitled in the action and made after the date of the order.
The interpretation of the section must be given to the principle that, wherever a court can see in the transactions brought before it that the rights of some of the parties may or will be probably affected, so that under the former system of law there might have been several actions brought in respect of the same transaction, the court shall have power to bring all the parties before it and determine all their rights by one trial, in order that the cost of litigation may be diminished as much as possible.
If the interests of the person applying to be added party, is adverse to and independent of the plaintiffs, the defendant might interplead and retire leaving the deposit to be contested between the two rival claimants, or the applicant should be added a dependent, if added at all and put in a defence and counter- claim to the sum in deposit.
When the provisions of the Colonial Statute are identical with those of on English statute, the Colonial Court should follow the decision of the Court of Appeal on the Imperial State.
Meideen Vs. Banda (1 N.L.R. 51)
In an action filed under section 247 to declare a deed executed on a property seized, is null and void shall join the judgment debtor who has executed such deed or add him under this section.
Haramanis Vs.Haramanis (10 N.L.R. 332)
The execution creditor may, in an action under section 247 of the code, prove the prescriptive right of the execution-debtor to the property, and for that purpose the execution debtor may be added as a party plaintiff or party defendant, as the case may be.
Pedro Costa Vs. Fernando (11 N.L.R. 210)
The principle is liable in a defamation case on the defamation caused by his agent in the course of his employment, when the action is filed only against the agent, principle cannot be added later under section 18. Prescriptive period is computed up to the date of the addition of the party on the cause of action against the added party.
Corea Vs. Peiris (13 N.L.R. 212)
Plaintiffs who were lessees brought a possessory action against the defendants. The defendants pleaded title. On a motion of the plaintiffs the lessors were made parties for the purpose of warranting and defending their title. At a later stage on the application of the plaintiffs, the Commissioner struck out the names of the added defendants. It was contended on appeal that the Commissioner had no power to set aside his first order.
Held, that he had the power to make the order under section 18 of the Civil Procedure Code, as the lessors were improperly joined.
Carolis Appu Vs. Dionis Appu (14 N.L.R. 390)
The court has the power to add a party after trial is concluded, but before the judgment was entered.
Schneider J, held, “The policy of the Civil Procedure Code is to avoid a multiplicity of actions, and, therefore, where the facts brought to the notice of the court before it has finally disposed of the action are such that the addition of a person would tend effectually a deal with all the questions involved, the court should not put difficulties in the way of parties to the action who seek to add such persons, but should stay its hand and afford the party seeking to do so an opportunity to add such person as may be necessary to finally determine all questions arising in the action”
Banda Vs. Dharmaratne (24 N.L.R. 210)
Where the plaintiff sued to have the common boundary defined between his land and other lands on the north and west which were owned by different co-owners, the defendants ; - Held, that there was a misjoinder of parties and causes of action. The plaintiff was allowed to elect in respect of which set of co-owners he would proceed, the action against the others being dismissed.
Thambimuttu Vs. Ratnasingham (40 N.L.R. 253)
A court is not bound to dismiss an action on the ground of a misjoinder of parties and causes of action. In such a case the court may on application made and in the exercise of its discretion strike out one or more plaintiffs and give an opportunity for amendment of the pleadings, so as to make the plaint conform to the requirements of section 17 of the Civil Procedure Code.
Kudhoos Vs. Joonoos (41 N.L.R. 251)
Where in an action to recover damages against three persons for wrongful arrest and detention the plaint alleged one act performed by all of them and the implication was that they were acting in concert. Held, that there was no misjoinder of parties or causes of action.
De Silva Vs. Alahakoon (44 N.L.R. 448)
The court is not bound to dismiss an action on the ground of misjoinder of parties and causes of action. It can strike out a wrongly joined defendant and allow the action to proceed as against the other defendants.
Podihamy Vs. Seimon Appu (47 N.L.R. 503)
A court has no jurisdiction to entertain an application made under section 15 and 16 of the Muslim Intestate Succession Wakfs Ordinance unless all the trustees of the charitable trust or place of worship in question are made respondents. Where the petitioners omit to name some of the trustees as respondents, the court has no power to invoke the aid of section 18 of the Civil Procedure Code in order that the remaining trustees may be added as parties.
Sinnalebbe Vs. Mustapha. (51 N.L.R. 541)
Where a plaintiff has instituted action against a wrong party as the defendant the plaint cannot be subsequently amended so as to have the proper person added as a defendant. In such a case, the proper course is for the plaintiff to drop the action which has been wrongly instituted and commence a new action against the proper person who should have been made the defendant.
Don Alwis Vs. Village Committee of Hiripitiya (54 N.L.R. 225)
An insurer in respect of third party risks under the Motor Traffic Act is not entitled to be added as a party under section 18 of the Civil Procedure Code in action for damages resulting from a collision with a motor car unless he can show that his legal rights would be prejudiced if judgment were to be entered against the party or parties on the record.
The United India Fire and General Insurance Co., Ltd Vs. Weinman (59 N.L.R. 495)
Where, in an action for declaration of title to a land, the plaintiff claimed title to the land upon a deed executed by A and the defendant claimed title upon a deed executed by B, and it was not shown that the plaintiff had any kind of connection or concern with the attempt by the defendant at rectification of his deed -
Held, that the defendant was not entitled to have B added as a party to the case so as to enable him to claim a rectification of his deed in respect of the land conveyed to him by B.
Murugappen Vs. Canagasabey (61 N.L.R. 333)
Where an intervenient seeks to be added as a party under section 18 of the Civil Procedure Code, any question arising on the case set up by him in his petition and not arising on the case set up in the pleadings of the parties is not a question involved in the action with the meaning of the section.
No person is entitled to be added as a party under section 16 of the Mortgage Act,No. 6 of 1949, unless there is an instrument in existence which gives him an interest in the land mortgaged on the bond which is being sued upon.
Plaintiffs-appellants instituted the present hypothecary action upon a mortgage bond No. 3514 executed by the 1st respondent on February 1, 1948. In his answer the 1st respondent asked that the action be dismissed or, in the alternative, for an order that an accounting be taken. The 2nd respondent, who had obtained a money decree against a person to whom the hypothecated property had been previously mortgaged in October, 1945, sought to be added as a party to the present action. The 1st and 2nd respondents both impugned the bond No. 3514 alleging that it was vitiated by fraud.
Held, that the court had no power to add the 2nd Respondent as a party either under section 18 of the Civil Procedure Code or under section 16 of the Mortgage Act, No. 6 of 1949.
Weerapperuma Vs. De Silva (61 N.L.R. 481)
Where a party is added in terms of section 18 of the Civil Procedure Code, the court may adjudicate on claims arising between such party and a plaintiff or a defendant. The adjudication on such claims will be res judicata between the parties. [Obiter: It is open to a court to adjudicate upon adverse claims set up by defendants inter se and unconnected with the claims of the plaintiffs. Kandavanam Vs. Kandasamy (57 N.L.R. 241) and Senarathna Vs. Perera (26 N.L.R. 225) referred to.
Kanagammah Vs. Kumarakulasingham (66 N.L.R. 529)
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 be preferred. Whenever a court can see in the transaction brought before it that the rights of one of the parties will or may be so affected that other actions may be brought in respect of that transaction the court has the power to bring all the parties before it and determine the rights of all in one proceeding. It is not necessary that the evidence on issues raised by the new parties being brought in should be exactly the same. It is sufficient if the main evidence and the main inquiry will be the same. Even if the narrower construction is adopted a person who has to be bound by the result of the action, or has a legal right enforceable by him against one of the parties to the action which will be affected by the result of the action should be joined; so also where the question raised by the party seeking to be added is so inextricably mixed with the matters in dispute as to be inseparable from them and the action itself cannot be decided without deciding it, then the addition should be made ; if the plaintiff can show that he cannot get effectual and complete relief unless the new party is joined or a defendant can show that he cannot effectually set up a defence which he desires to set up unless the new party is joined, the addition should be allowed.
Arumugam Coomaraswamy Vs. Andiris Appuhamy (1985 (2) S.L.R. 219)(Sri Skantha Law Reports Vol. II page 56)
A party who has parted with his interests in the corpus pendente lite can bring a rei vidicatio action against the defendant adding the purchaser, as a co-plaintiff.
Eugin Fernando Vs. Charles Perera (1988 (2) S.L.R. 228)
Section 18 permits courts on or before the hearing upon application of either party to strike out the name of any party improperly joined. Section 36 provides that if any cause of action cannot be conveniently tried, for court ex mero motu or on the application of the defendants with notice to the plaintiff at any time before the hearing or on agreement of the parties after the commencement of the hearing to order separate trials of any cause of action.
Adlin Fernando Vs. Lionel Fernando (1995 (2) S.L.R. 25)
“If a plaintiff can show that he cannot get effectual and complete relief, unless the new party is joined or a defendant can show that he cannot effectually set up a defence, which he desires to set up unless the new party is joined, the addition should be allowed.”
Robert Dassanayake Vs. Peoples Bank (1995 (2) SLR 320.)
Even if the party is added since, the 4th defendant-respondent even at present is in occupation in unbroken continuation of the property which he had derived from or under the title of the 3rd defendant-respondent, the 4th defendant-respondent would be effectively precluded in law from showing that the party proposed to be added or anyone else than the 3rd defendant-respondent has title or that he is holding or in possession under anyone else than the 3rd defendant-respondent.
“Law does nothing in vain and commands nothing in vain.”
Najimdeen Vs. Nageshwari (1999 (3) S.L.R. 123)
The plaintiff-respondent filed action seeking a declaration that the mortgage bond referred to in the plaint is null and void and the property is not subject to mortgage. The defendant-petitioner prayed for the rectification of the bond. The trial was fixed for a date, the defendant moved to add the petitioner as a party, which was allowed by the District Court.
It was contended that, the addition would result in misjoinder. Court held,
Section 14 -deals with a situation where the plaintiff institutes an action against persons who are liable to be sued as defendants.
Section 18 -deals with the situation where the presence of any party may be necessary to effectually and completely adjudicate upon and settle all questions involved in the action.
If the petitioner is not added as a party a separate action will have to be filed against the petitioner and the plaintiff with respect to the very same relief, viz., the rectification of the Mortgage Bond. Once the Petitioner is added the question whether the Mortgage Bond should be rectified or not can be determined once and for all in one action without having to bring a separate action.
Mackie and Sons Vs. Mackie (1999 (3) S.L.R. 386)
The plaintiff-petitioner instituted the above styled action and sought a declaration for a right of way, over lot 10, for a demolition order to demolish all structures constructed on the said road reservation. The position of the 1st defendant-respondent was that the said lot 10, is not a road reservation. Commission was issued to ascertain whether there are structures on the road reservation (lot 10). After the Commissioner returned his Commission on 18. 10. 93 application was made to add 2nd and 3rd resepondents, and the said application was allowed. At the trial when the plaintiff was being cross-examined an application was made on 29. 07. 98 to add the 4th and 8th respondents. This was disallowed by Court.
So long as the Court has exercised its discretion judicially an appellate Court would not disturb and interfere with such an order.
Plan and the report were tendered to Court on 16.10.93. The plaintiff-appellant’s failure to act upon the report tendered to Court by the Commissioner as far back as 16.10.93 until 29.7.98 is indicative of the absence of due diligence on his part.
The conclusion arrived at by the learned Trial Judge is a justifiable conclusion because it is a well-established rule of practice that an amendment which works an injustice to the other side should not be allowed.
Further, the application to add the 4th and 8th respondent-respondents as defendants was made 4 years and 5 months after the plaintiff-petitioner became aware that there had been a number of structures obstructing the alleged road reservation. The need for the amendment did not arise unexpectedly.
Section 18 - Civil Procedure Code, the words “the Court may... in such terms as the Court thinks just...” creates a discretionary power which must be exercised according to the principles applicable to the exercise of such a power.
Rohana Vs. Shyama Attygala (1999 (3) S.L.R. 381)
The District Court refused the application of the plaintiff-appellant to execute the decree. The award had been made as damages for serious physical injuries that the plaintiff-appellant suffered.
The 1st defendant-respondent, operation of whose lorry had caused these injuries had third party insurance cover against liabilities. The Insurance Company (3rd respondent) was not a party in the District Court. The application made to add the Insurance Company at the execution stage was refused by Court.
At the appeal the 3rd respondent Insurance Company was named the added respondent and they contended that:
(i)the added respondent could not have been made a party to the action after judgment had been entered.
(ii)the added respondent not being a party to the action is not bound by the judgment.
U. de Z. Gunawardene J. held that, no one can be added as a party to the action after judgment had been entered, therefore the added respondent not being a party, the judgment could not be enforced or executed against it.
The 1st defendant-respondent (insured) has no direct interest in the safety of third parties. The loss against which he (1st defendant-respondent) seeks protection is not the injury or damage caused by the accident, he seeks protection (under the policy) against the consequence of the fact that he happens to be responsible for the accident in the circumstances in which it has happened.
The addition of the Insurance Company was not at all necessary for the execution against the Insurance Company by the money decree that had been entered in favour of the plaintiff-appellant.
In terms of section 218 Civil Procedure Code, the money to the amount awarded in the hands of the insurer cannot strictly be said to be money (property) belonging to the judgment-debtor, more so as the 1st defendant-respondent (insured) has insured against liability to third party arising otherwise than from contract.
The insurer is legally bound to compensate and the 1st defendant-respondent’s right is not a mere right to request that he be given assistance or an indemnity - it is a legal entitlement as opposed to a benefit.
One aspect of the doctrine of subrogation in relation to an insurer, means the right of the insurer, who has indemnified the insured to step into the shoes of the insured and in a name of the insured pursue any right of action available to the insured which may diminish the loss insured against. The other aspect of the doctrine of subrogation is that the insured cannot make a profit from his loss and that for any profit he does make he is accountable to his insurer either as constructive trustee or an action in quasi contract for money had and received.
Even if the money (to the amount of the judgment) is not held by the added respondent in trust yet it can be said to be held on behalf of the judgment-debtor.
The words “shall” in section 105 of the Motor Traffic Act “the insurer shall pay to the person entitled to the benefit of the decree the sum payable thereunder” denotes an absolute obligation.
Civil Procedure Code is not exhaustive as to the powers of Court in matters of procedure. The Court has an inherent power to make a particular order, where its decision is based on sound general principles and is not in conflict with them or the intention of the legislature.
Courts are expected not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code.
As there is no prohibition legal or otherwise, the plaintiff-appellant has the power in execution of the judgment to “seize and sell or to realize the money by the hands of the Fiscal” all saleable property, whether moveable or immovable belonging to the added respondent (Insurance Company).
It is wholly unnecessary to add the Insurance Company as a party.
Fernando Vs. De Silva (2000 (3) S.L.R. 29)
The plaintiff-appellant (“The plaintiff”) instituted an action in the District Court against the defendant for a declaration of title to the property in dispute and for ejectment and damages. The plaint averred that the defendant – respondent (“The defendant”) was the original owner of the property; the defendant sold it to the 2nd respondent, a Finance Company (“The Company”) by deed No. 420 dated 18.2.1985; the company entered into an agreement to sell the property to one Lokuge (the defendant’s nephew); that agreement was cancelled by deed No. 1116 dated 20.3.1989 on the ground of Lokuge’s default; and thereafter the plaintiff purchased the property by deed No. 1117 dated 20.3.1989.
The defendant filed answer and made an application to add the Company as a necessary party. The District Judge allowed the application. It was the defendant’s position that the alleged sale of the property by her to the Company on 18.2.1985 was not true. Her signature was obtained by the Company but she never parted with the title to the land in dispute. It was submitted on behalf of the defendant that the Company and the plaintiff had acted together fraudulently in connection with the land in dispute.
Shirani Bandaranayake J. held, that,in order to avoid multiplicity of actions and to diminish the cost of litigation and for the effective and complete adjudication of all questions involved in the case, the District Judge was correct when he ordered the addition of the Company as a party defendant.
Hilda Enid Perera Vs. Somawathie Lokuge (2000 (3) S.L.R. 200)
The plaintiff-respondent-petitioner filed action seeking a declaration of title to the land in question and for an interim injunction preventing the defendant-respondent-respondent (Urban Council) from acquiring any part of the land for road development. The Court allowed the land owners adjoining the road way to be, added as parties on the basis that grave prejudice had been caused to them.
On leave being sought Jayawickrama J. held that;
(a)originally the petitioner and several other residents gave their written consent to the defendant-respondent (U.C) to widen the roadway upto 12 ft. (R8). Subsequently the plaintiff-respondent-petitioner and 6 other residents requested the Chairman of the Development Council to widen the road only upto 10 ft (X10).
(b)R2 and X1C are documents affecting land, but they are non-notarial documents.
(c)the matter that the Court has to decide is the validity of documents R2 and X1C, which deal with the widening of the entirety of the road and not only regarding the widening of the road at the point adjoining the plaintiff-respondent-petitioner’s land. Thus the dispute is not entirely a dispute affecting only the land of the plaintiff-respondent-petitioner but all other residents of lands adjoining the roadway who had given consent for the widening of the road.
(d)therefore widening of the road which is based on R2 is a matter which has to be decided among signatories to R2 and X1C.
(e)in deciding whether a new party should be allowed under section 18 (1) Civil Procedure Code the wider construction adopted by English law is to be preferred.
Keerthiwansa Vs. Urban Council, Horana (2001(3) S.L.R. 252)
According to section 48 (5) and section 48 (1) of the Partition Law it is clear that the only remedy available to a person who was not a party to a partition action, is to file a separate action to recover damages from any party to the action, if he says that his land has been partitioned.
The above provisions state that “the amount of damages shall be a charge on any share of the land or any money allotted in such action” makes it clear that a party will not be prejudiced by the mere fact of not being added as a party – section 49 (1) prevents such prejudice.
Per Jayawickrama J. “Although in an appropriate case this Court has jurisdiction to act in revision and restitutio-in-integrum but where a party has deliberately not shown due diligence even after he was notified by the Surveyor to appear in Court and fails to apply to be added as a party, this Court will not exercise its jurisdiction in his favour.
It is clear that the petitioners have accepted the finality of the judgment and the interlocutory decree in this action.
Perera Vs. Adline (2000 (3) S.L.R. 93)
Gamini Amaratunga, J. held that;
A party who has intervened into a case on his own and added as a party defendant cannot raise a plea of misjoinder. Court cannot dismiss an action on the basis of misjoinder but Court can discharge a defendant from the proceedings. (cited, Wismaloma Vs. Alapatha 45 C.L.W. 67)
Mahasen Suresh Karunaratne Vs. Rita Nanayakkara (C.A. Application No. 866/2001, D.C. Colombo 17154/L, C.A. minute dated 29.1.2004)
After the commencement of the trial the defendant moved to add his mother and the three sisters as parties to the action. The plaintiff objected to the said application and the learned trial Judge upheld the said objection.
Gamini Amaratunga J. held that;
“An order for the addition of parties cannot be made in order to facilitate a party to the action to cure the defects in his pleadings”
Yaseen Vs. Saleem (C.A.L.A. No. 159/2002, D.C. Colombo 18832/L, C.A. minute dated 3.2.2004)
The purpose of addition of parties according to section 18(1) is to enable the court to “effectually and completely adjudicate upon and settle all the questions involved”, in an action. However, the addition of a party should be subject to any positive rule of law that would be applicable in relation to the cause of action against such party sought to be added, specially relating to limitation of time as set out in section 9 of the Prescription Ordinance No.22 of 1871.
Meezam Vs. Ranjith Sumanasekera (Bar Journal 2012 Vol. XIX Part II page 156)
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