GUJADHUR vs ACKBAR GUJADHUR LTD. AND Others.

1970 MR 176
Garrioch SPJ

This is an application under Rule 56 of the Rules of the Supreme Court, 1903, to have the names of the:
applicants struck out in an action (in what follows referred to as the main action) entered by the respondent against the
co-respondent in presence of the applicants. The application is resisted.

1 shall first consider an objection raised by the respondent relating to practice. It is contended on his part that
what the applicants are seeking to obtain should have been raised by way of demurrer. The point made is not quite clear
and the authorities cited do not help as they are inapplicable. I do not propose to discuss them. This application is made
under Rule 56 of our Rules of Court which empowers a court or judge, among other things, to order the striking out of
the name of any party who is found to have been improperly joined in the cause. All I am concerned with, accordingly,
is the question whether the applicants have made out a case under that Rule that their joinder was improper.

For the applicants it is said, in the first instance, - and this appears from the statement of claim filed in the
main action-that no relief is asked for against them. This ground is not tenable by itself. The object of entering an
action in presence of certain parties, as has been explained in Auto Car and Sport Equipment Co. Ltd. v. Rogers & Co.
Ltd. And ors [1930 MR 120] and de Berthier de Sauvigny and ors. v. Courbevoie Ltée and ors. [1955 MR 215], is not
to claim relief against them but to ensure that the judgment given in the action will, in so far as they are concerned,
have the authority of "chose jugée". But the applicants further contended that, by his affidavit made in reply to their
own, the respondent has disclosed that the object of joining them as parties was merely to enable him to call and
examine them on personal answers in order to obtain admissions. The law on this question is, I think, clear. Party who
has no interest in a suit should not be put into cause for the sole purpose of obtaining, through an examination on
personal answers, evidence of facts which are to his own knowledge. The principle is to be found stated in Dalloz Code
de Procédure Annoté - art. 324, notes 33 to 37; in particular-

33. Les tiers étrangers au procès ne peuvent être interrogés sur faits et articles; leur
témoignage doit être reçu, suivant les formes prescrites en matière d’enquête.

36. …la mise en cause d'un tiers pour déposer sur des faits qui sont à sa connaissance
relativement au litige, n'est point admissible, ce tiers ne pouvant êtreentendu que
dans la forme prescrite pour les enquêtes.

37, Si donc un individu entièrement désintéressé dans la contestation n'avait été appelé
que dans le but, au moyen d’un interrogatoire, une sorte de dépositions, et d’éluder
ainsi les principes qui régissent la preuve testimoniale, les juges devraient refuser
l’interrogatoire.

(see also the textbook writers referred to in those notes and a judgment of the Cour de Cassation reported in D.P.
62.1.131). The principle was relied upon by Glover J. in Nobeebux v. Nobeebux [1959 MR 357] when refusing to allow
a party in whose presence an action had been entered to be called on personal answers. The learned judge also based his
ruling on the fact that any admission made by the party concerned would not have any legal effect against the defendant
in the case. The rule of practice is the same in English law under the former Order XVI, Rule 11 from which our Rule
56 is borrowed. A defendant who has been joined in the cause merely for the purpose of discovery may have his name
struck out [Wilson v. Church (1878) IX Ch.D. 522]. Upon such clear authority, I would feel bound to grant this
application if I were satisfied that there had been on the Part of the respondent an admission, expressed or implied, that
the applicants were strangers to the main action who had been joined solely for the purpose of interrogating them. But
the case of the respondent, as I see it from his affidavits, goes further. He avers that the applicants have been closely
and personally involved in a transaction which is at the root of his claim in the main action and that it was proper for
him to join them in that action inasmuch as they were responsible for the situation which has given rise to it. This Court
has in the case of Auto Car and Sport Equipment Co. Ltd. v. Rogers and Co. Ltd. and ors. to which I have already
referred explained the relationship between the "in the presence of..." practice and the French procedure of "assignation
en declaration de jugement commun". The latter procedure, its object and requirements are set out in the Appendice au
Titre XVI, para. 2 of Dalloz Code de Procédure Civile Annoté, Vol. II, p. 162 et seq. The following notes are relevant:
 26. Toutes les fois qu'un tiers, qui n'est pas appelé dans un procès, pourrait se plaindre
de n'y avoir pas été partie, et recommencer une instance sur la même question, la
partie intéressée a le droit de l'appeler en cause pour faire déclarer commune avec
lui la décision à intervenir.

27. Pour que ce droit existe, il faut donc, d'une part, que cette décision ne doive pas
ipso facto être commune avec le tiers assigné, ce qui aurait lieu, s'il était représenté
au procès; en ce cas, l’assignation serait frustratoire. En ce sens: Garsonnet, 2e
edit., t.3 para. 938, note 4 p.224 et para. 958, p.262; Glasson et Colmet-Daage, 2e
edit., t.1 no. 876, p.940.

31. Jugé aussi que, lorsqu'une partie a le droit d'intervenir dans une instance, ii existe pour
les intéressés un droit corrélatif de l'appeler dans cette instance même contre sa
volonté: Pau. i6 nov. 1885 D.P. 86.2.278.

Now, in the statement of claim filed by the respondent it is averred that the co-respondent company is bound
to transfer a certain number of shares in the name of the respondent as a result of an undertaking given by the
applicants. It seems, therefore, that the applicants, had they not been made parties to the suit, would have been entitled
to intervene. Consequently, the respondent would, under the procedure of “assignation", have the correlative right to
join them in the suit. I am not prepared, at any rate, to say as from now that the applicants are so unconnected with the
subject-matter of the main action that to cause them to be "present" in the suit, following our well-established local
practice, was in the circumstances improper. The first ground put forward by the applicants against their joinder must
fail. Having regard to the reasons for which I so rule, I need hardly add that, at this stage, the question does not arise
whether the applicants, having been so joined, may or may not be called to be examined on personal answers. This is a
matter which the court will in due course have to determine.

There remains to be considered the other point urged by the applicants which is, that the respondent cannot
now object to the striking of their names inasmuch as they have already been put out of cause the judge in Chambers in
an application for the issue of a writ of injunction made by the respondent against the co-respondent company in the
presence of the applicants. The purpose of that application was to prevent a third party not before Court from paying to
the co-respondent company dividends accruing from the shares concerned in the main action, and the co-respondent
company from receiving any such dividends. The learned judge held that, as no relief was sought against the applicants
and there was no issue raised between them and the co-respondent, they should be put out of cause. The applicants now
submit that the learned judge's decision has "force de chose jugée" with respect to the joinder of the applicants in the
main action. I do not find it necessary to examine at length the submission made and the authorities cited on the part of
the applicants. Suffice it for me to say that after carefully considering the matter I think it fairly evident that no "identité
d'objet" exists between the application for a writ of injunction and the main action. One of the conditions required by
article 1851 of the Code Napoléon for pleading “res judicata" is thus missing. The second ground advanced by the
applicants fails, and their application must be refused.

With costs.

Counsel
M. Gujadhur, for the applicants.
F. Vallet, for the respondent,

Attorneys
S. Veerasamy, for the applicants.
A. de Pitray, for the respondent.
A. Rajah, for the co-respondent company.