Arumogam V. Vaithialingam

1942 Present: Howard C.J. and de Kretser J.

ARUMOGAM v. VAITHIALINGAM.

17-D.C. (Inty.) Jaffna,16,669.

Intervention of parties-Action on mortgage bond claims to money lent by third parties-Right to intervene-Civil Procedure Code, s. 18.

Plaintiff sued to recover money due on a mortgage bond, in which it was stated that he was lending his daughter's money. The defendant admitted the debt, but alleged that there were other claimants to the money and asked the Court to decide to whom he should pay it.

Persons, alleging to be heirs of plaintiff's daughter, sought to intervene in the action.

Held that the parties should not be added under section 18 of the Civil Procedure Code.

APPEAL from an order of the District Judge of Jaffna.

N. Nadarajah, K.C. (with him V. K. Kandasamy), appellant.

P. Navaratnarajah, for intervenient respondents, for plaintiff,

Cur: adv. vult.

July 13, 1942. DE KRETSER J.-

The plaintiff lent the defendant money on a mortgage bond and now seeks to recover it. The defendant admits the debt and professes his willingness to' pay it but alleges there are counter-claimants and asks the Court to decide whom he should pay it to. He has hot brought the money into Court and has gained quite a long extension of time already. Some minors claiming the money seek to intervene through a next friend, and the trial Judge has ordered that they be added as defendants, purporting to act under section 18 of the Civil Procedure Code. Before us, Counsel for respondents did not rely on this section but referred us to section 472, which clearly has no application. We reserved judgment in order to consider the application of section 18, whereupon respondent's Counsel referred us to page 1111 of Chitaley on the Indian Code, where a long list of cases' is given. Clearly none of them apply or Counsel would have cited to us the case which did.

It is essential in the first place to remember that this is an action based on contract and the only contracting parties are the plaintiff and the defendant. In the bond, plaintiff went out of his way to allege

that he was lending his daughter's money and it is his daughter's heirs who seek to intervene. Plaintiff alleges he has paid his daughter and that the money is his. The only dispute is between the plaintiff and these heirs - and that dispute will not arise in this action unless and until they intervene. It is not a question involved in the action until then, and in fact it arises from a separate cause of action.

It might be convenient to settle the dispute now but there are also dangers and difficulties in allowing them to come in. The Court is not obliged to let them in and in exercising its discretion it ought to consider all aspects of the matter. It is not alleged that the plaintiff is not solvent nor is it clear whether a dispute may not arise as to whether the would-be intervenients are the heirs or the sole heirs of the plaintiff's daughter.

The defendant has not brought the money into Court, and delay may spell loss to both claimants. In any case, is the section applicable? If it is, one may have the case of a landlord suing his tenant for rent. The tenant cannot dispute his landlord's title but third parties may seek to come in on the ground that they are the real owners of the property and so a simple action for rent may be converted into a case for settling title to property, not among two but possibly more claimants.

The answer to the question seems to be that -'in an action on a contract extraneous matters ought not to be allowed to come in but only some matter directly arising from the contract itself and quite subsidiary to it.

Let us, however, examine the authorities. The trial Judge relies on the case of Meideen v. Banda [1 N. L. R. 51.] decided in 1895. Of the three Judges who heard the appeal, Lawrie A.C.J. disagreed with the other two and said: "Between the parties to the action th

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