SIYANERIS & CO. LTD. VS. JAYASINGHE AND OTHERS

SIYANERIS & CO. LTD.
VS.
JAYASINGHE AND OTHERS

COURT OF APPEAL
CHANDRA EKANAYAKE,J
SISIRA DE ABREW,J
CALA 88/2003(LG)
DC RATNAPURA 14845/M
DECEMBER 7, 2007

Civil Procedure Code- Section 18- Addition of a party who was previously discharged- Bona fide - Legality? - Discretion of Court- Prejudice caused? -Prescriptive rights? Prescription Ordinance No, 22 of 1871.

The plaintiff instituted action seeking a decree in a sum of Rs. 500,000/- against the 1-3 defendants on their joint and several liability together with interest- on account of damages suffered by the plaintiff as a result of the death of her husband caused in a motor accident. The 3rd defendant though wrongly named filed answer denying liability. Initially the 3rd defendant was discharged on the basis that the 2nd defendant was the registered owner Subsequently the plaintiff alleging that he was under the impression that the 2nd defendant was the registered owner, and having later come to know that the 3rd defendant is in fact the owner, sought to add him as a party. The District Court allowed the application, on leave being granted.

Held:

(1) A plain reading of Section 18(1) would reveal nothing but that Court may on or before hearing on such terms the Court thinks just order that name of any person who ought to have been joined.... be added.

Per Chandra Ekanayake, J

"In the instant case when the case was taken up for trial on 25.1.2000 on the belief that the 2nd defendant is the registered owner at the time of the action and having acted on that belief plaintiff agreed, to discharge the defendant from the case, thereafter when further trial was fixed then only she having understood correctly that the 3rd defendant was the registered owner at the time of the accident an application was made under Section 18 (1) to add the 3rd defendant the registered owner as a defendant. The application to discharge the 3rd defendant appears to be bona fide and there is nothing to prevent the present petitioner being added as a party under Section 18".

(2) A party so added under Section 18 has the right to plead prescription and he is in no way precluded from setting up such a plea as his answer. No question of limitation can arise with respect to the Courts power to make an order adding a party default to suit.

(3) When an application is made under Section 18 (1) to add a party what the Court ought to see is whether there is anything which cannot be determined owing to his absence or whether he will be prejudiced by his not being added. If the present petitioner is not added as a party the liability cannot be properly determined owing to its absence.

APPLICATION for leave to appeal from an order of the District Court of Ratnapura with leave being granted.

Cases referred to:

(1) Corea vs. Pieris -13 NLR 212
(2) Fernando v. Fernando 26 NLR 292
(3) Oriental Bank Corporation vs. J.A. Charriol and others 1886 1 LR 12 Cal 642
(4) The Chartered Bank vs. De Silva 67 NLR 135

Hemasiri Withanachchi for petitioner

Rohan Sahabandu for plaintiff-respondent

Cur.adv.vult.

December 7, 2007
CHANDRA EKANAYAKE., J.

The Petitioner (K.M.Siyaneris and Co. Ltd) by its Petition dated 23.03.2003 has sought inter alia, leave to appeal from the order dated 06.03.2003 of the District Judge of Ratnapura pronounced in D.C Ratnapura case No. 1 4845/M, to set aside the same and to dismiss the application of the Plaintiff-Respondent (hereinafter sometimes referred to as the Plaintiff) to add the Petitioner as a party.

The plaintiff had instituted the above styled action in the District Court of Ratnapura seeking inter alia, a decree in sum of Rs. 500,000 against 1 to 3 defendants on their joint and several liability together with interest prayed for in sub-paragraph (ii) of the prayer to the amended plaint (XI), on account of damages suffered by the plaintiff as a result of the death of her husband caused in a motor ac

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