Chartered Bank V. De Silva

1964 Present : Sri Skanda Rajah, J., and Alles, J.

THE CHARTERED BANK, Appellant, and L. N. DE SILVA
and others, Respondents

S. C. 19 (Inty.) / 1961 -D. C. Colombo, 46569/M

Addition of parties-Scope of s. 18 (1) of Civil Procedure Code-Witness-Right to object to being added as a party-Contract of suretyship-Action instituted by guarantor against principal debtor-Non-liability of creditor to be added as a party.

A person who is no more than an important witness in a case is not liable to be added as a party to the case in terms of section 18 (1) of the Civil Procedure Code on the pretext that his presence is necessary " in order to enable the court effectually and completely to adjudicate upon all the questions involved in the action ".

In a contract of suretyship, the principal debtors were the 1st and 2nd defendants, the creditor was a Bank, and the guarantor was the plaintiff. The Bank demanded payment of a sum of Rs. 28,520-02 from the plaintiff, who complied and sued the defendants for the recovery of the sum. The defendants pleaded that the Bank had, in breach of certain terms, wrongly called upon the plaintiff to pay, and that, therefore, the plaintiff was not entitled to recover the sum from the defendants. On the trial date, the plaintiff and the defendants moved to add the Bank as a party to the action under section 18 (1) of the Civil Procedure Code " for the complete and effectual adjudication of all matters in this case ". Although the Bank filed objections, the application of the parties was allowed.

Held, that the Bank was not liable to be added as a party. The cause of action against the defendants was quite different from the cause of action against the Bank. The Bank was undoubtedly a material witness, but the process of the Court was available to the parties to compel the Bank to produce the necessary documents.

APPEAL from an order of the District Court, Colombo.

E. W. Jayewardene , Q.C., with L. C. Seneviratne and D. S. Wijewardene,, for Added-party Appellant.

H. V. Perera, Q.C., with C. G. Weeramantry and V. Martyn, for Plaintiff-Respondent.

M. Tiruchdvam, Q.C., with C. D. S. Sirivardene and Mark Fernando, for 1st and 2nd Defendants-Respondents.

Cur. adv. vult.

October 6,1964. SRI SKANDA RAJAH, J.-

At the conclusion of the argument we allowed the appeal with costs in both Courts and reserved the reasons for a later date. They are set down now.

The facts leading up to this appeal are briefly :-

The two defendants contracted with the Ceylon Government Railway to supply railway sleepers to be imported from Bangkok. For that purpose they caused the Chartered Bank (hereinafter referred to as the Bank) to open a letter of credit in favour of the shippers in Bangkok for a sum of Rs. 68,520-02 with the plaintiff as guarantor. The Bank paid this amount to the shippers and called upon the defendants to pay it. The defendants paid the Bank Rs. 40,000 but failed to pay the balance. Thereupon, the Bank demanded payment of the balance from the plaintiff, who complied and filed this suit against the defendants for the recovery of the Rs. 28,520-02. The defendants filed answer denying liability alleging that they were not under obligation to make good to the Bank the payment made by it to the shippers because the payment was in breach of certain terms. Therefore, the plaintiff was under no obligation to pay the Bank. Therefore, the plaintiff cannot recover it from the defendants. The case was fixed for trial on 29.1. 1961 and the parties got ready for it. The defendants filed their list of witnesses and documents in which the Bank was mentioned as witness and also the necessary documents which were in its possession. The plaintiff did likewise. That is to say, the parties realised that the Bank was an important witness because the documents in its possession were vital for the determination of the issues. On the trial date " couns

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