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Present: Bertram C.J. an<l Ennis J.'jiAMEN CHETTY v. MACKWOOD, LTD.77—D. C. Kegalla, 5,781.
Action against, agents of an estate for money advanced to superintendent—■Motion to add proprietors as added defendants—Civil ProcedureCode, ss. 14 and 18—Numerous proprietors out of the Island-Service of summons—Application by plaintiff to appoint some oneproprietor to defend the action on behalf of all—Names of severalproprietors unknown—Civil. Procedure Code, ss. 16, 25, and 65.
Plaintiff sued the defendant company, who^ were agents ofCottangala estate, for the recovery of money advanced to thesuperintendent for the benefit of the estate. The defendantcompany denied responsibility.Plaintiffthereuponmovedto
add the proprietors as defendants.»
Held, that the cause of action against the defendant companyand the proprietors were the same, and that the proprietors, mightbe added as defendants.
Both the defendant company, and the proprietors could havebeen joined originally .under section 14 ,, of the Civil Procedure Code.Section 18 must be construed as enabling an addition to be made ofany party who might, for the purpose of determining the cause ofaction, have been originally joined under section 14.
The co-proprietors of the estate were numerous, and the defend-ant company did not know who most of them were. The SupremeCourt gave permission to the plaintiff to make an application for thejoinder of such of the proprietors as he may*, nominate, and for leaveto sue them as representing themselves and the other co-proprietorsunder section 18. Notice was also directed to be given to all theproprietors by advertisement in the papers.
The application for the appoinment of certain persons to sueor to be sued in a representative capacity, under section 16 of theCivil Procedure Code, need not proceed from those persons them-selves. It may be made by persons seeking to sue them, andeven in the face of the opposition of a person sought to be made
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representative. It is net necessary in an application for thispurpose to specify by name ail the persons to be represented. It issufficient to describe them generally, and leave them, if necessary,to be subsequently ascertained.
HE facts appear from the judgment.
Samardwichfeme (with him Canakaratne), for the appellant.
Hay ley, for the respondent. – .
October 6, 1922. Bertram C.J.— *
This is an. appeal against an order of the District Court of Kegallarefusing an application by. the plaintiff for the joinder of certainparties as defendants. The plaintiff is a Chetty, who made certainadvances to one Lloyd Perera, who wets at the -time the superin-tendent of Cottangala estate. .He claims that those advances weremade in pursuance of an authority granted to the said Lloyd Pereraby the defendant company who are the agents of the estate, andthat the defendant company acquiesced in those advances, andthat they were so advanced for the benefit of the estate. On thosegrounds he sues the defendant company. The defendant companyby their answer plead that the. plaint discloses no cause of actionagainst them. They- admit that they .are the agents of Cottangalaestate, but deny that they are in -any. /way responsible for anyliabilities incurred on behalf of the estate. They also traverse■ generally the allegations of the plaintiff. On this answer beingfiled, the plaintiff sought to add as defendants the proprietors of theestate, to whose existence the answer had drawn fuller – attention,and it was for this purpose that an application was made to theCourt below. The plaint in the action, which seeks to fix thedefendant company with liability, is certainly open to criticism, andif it means to charge them with liability on the ground that they
, are the local agents of a principal outside the jurisdiction, it clearlyought to have been made more explicit. But this is a point withwhich it is not necessary to concern ourselves. The only questionthat we have" to determine, in the first instance, is whether theproprietors should be joined as parties.
Mr Hayley appears on behalf of the defendant company andobjects to this proposed joinder. His objection is that, while- no doubt the Code authorizes the joinder of defendants, it onlyauthorizes such a joinder in respect of the same cause of action. Hesays that his own liability, if any, with respect to this money ariseson a different cause of action from any supposed liability that mayexist in the- proprietors. He urges – incidentally that the liabilityof the proprietors, if any such liability exists, is for the returnof the money lent, whereas the liability against him, if any, is aliability for breach of a warranty of authority.
– ItatnenChetty V.Mackioood,
(. rs )I think this is too narrow a view to take of section 14 of the CivilProcedure Code. The cause of action here is the Bame, both againstthe defendant company and against the proprietors. It arises on aloan, and the cause of action is the oreach of the obligation to returnthe money said to be advanced. It may be held that the partyliable is the defendant company. It may be held that the pro-prietors alone are liable. But the cause of action is the same. Itis undoubted that both the. company and the proprietors could havebeen joined originally under section 14. I think that, section18 must be construed as enabling an addition to. be made of anyparty who might, for the purpose of determining the cause of action,have been originally joined under section 14. See the judgmentof Grantham J. in Massey v. Heynes.1 That, however, does notdispose of all the difficulties in the case.
It appears that the co-proprietors in this case are extremelynumerous. The defendant company, indeed, do not know who theyare. They know the proprietors entitled to one-third orf the estate,but they are unable to state the proprietors entitled to the remainingtwo-thirds. With regard to those proprietors, they correspondin the case of one-third with a firm of solicitors in London, andwith regard to the other one-third, they correspond with a ladynamed Mrs. Corner.
The appellant seeks to join both this firm of solicitors m Londonand Mrs. Comer. But this cannot be allowed. Neither Mrs.Corner nor * this firm of solicitors are proprietors. Some of theproprietors are thus unknown, and the question is how is justice tobe done in the matter. 1 express no sort of opinion, as to whetherthere is any substance whatever in the claim. It would, however,be a most unfortunate result if it were not possible to try claimsarising against estates in this country because some of the personsentitled to shares in the estates could not be identified. It wouldalso be most unfortunate if it were necessary in such a case to serveall these proprietors personally outside the jurisdiction. Section25 of the Civil Procedure Code was considered in this connectionwhen the question arose whether it may not be possiblbe to serve thedefendant company on behalf of at least the known proprietors,under paragraph (c) of that section, but Mr. Hayley points out thatthat section only applies to persons carrying on trade or business forami in the name of the parties not resident. Although the companywhom he represents carries on business for the proprietors, itdoes not do so in their name. There is, however, another sectionwhich might, to some extent, meet the difficulty, and that is section65, which declares that where there is an action relating to anybusiness or work against a person who does not reside within thelocal limits of the jurisdiction of the Court, service on any manager
1 (1888) 21 Q. B. D. on p. 336. .
BarnettChatty v.Mack wood,Ltd.
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or agent who at the time of service personally carries on businessor work "for such person within such limits shall be deemed goodservice.’
It is not necessary for us to decide in this matter whether underthat section a superintendent might be served with notice of anyprocess against the known proprietors of his estate, because itappears to us that there is another solution of the matter which Iwill proceed to explain.
The difficulty in the case is that there is a very numerous bodyof proprietors, some of whom aref" altogether unknown. Now, section16 of our Code provides that where. there are numerous partieshaving a common interest in defending an action, , one or more ofsuch parties may, with the permission, of the Court, be sued on behalfof all the parties so interested. That section is • taken from theEnglish Rules of Court, the corresponding rule there being OrderXVI., Rule 9. Now it is quite clear under the English rule that theapplication for the appointment of certain persons to sue or to be suedin a representative capacity need not proceed 'from those persons•themselves. It may be made by persons seeking to sue them, andeven in the face of the opposition of a person sought to be made repre-sentative. See Wood v. McCarthy 1. Similarly, it does not appearto be necessary in an application under that rule to specify by nameall the persons to be represented. It would appear to be sufficientto describe them generally, and leave them if necessary, to besubsequently ascertained. I see no difficulty under that section in•an action being launched against certain persons as representing anumerous body of other persons who are not at the time ascertained,but who are ascertainable. A difficulty arises, however, in thefact that certain words have been added to our own section whichdo not appear in the English rule. These additional words seemto contemplate only cases in which persons themselves apply tosue or defend in a representative capacity. Are we to construethese additional words in which only these cases are provided foras limiting the first part of the section to these cases ? I do notthink so. I think that all that the situation shows is that thedraftsman .of the section had not fully thought ^out all the casesto which it- applies. In the cases he mentions it is provided thatnotice of the action shall be given to all the parties interestedeither by personal service, or if -from the number, of parties or anyother cause such service is not reasonably practicable, then byadvertisement. I think, in the first place, we should authorizesuch of the resident proprietors as the plaintiff nominates to besued as* representing themselves and the other co-proprietors, andthat, although the second part of the section does not apply in thepresent case, we should take the same equitable course as is there
1 (1893) 1 Q. B. D. 77S.
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indicated, and should direct that notice should be given .to .all theproprietors by public advertisement in the “ Times of Ceylon”and the *'* Observer.” The result is, therefore/ that the appealmust be allowed.,l j
In my opinion, we should set aside the order,..and we should sendthe case back to allow the plaintiff to' make: application for thejoinder of such of the proprietors as he may nominate, and forleave to sue them as representing themselves and the other co-proprietors under section IB, without prejudice, of course, to anyopposition which these gentlemen may choose to make in the Courtbelow; and at the same time an opportunity should be given toallow the plaintiff to make any application he may think fit for theamendment of- his plaint. As I have before observed, there is nooccasion for us to give any decision on the question as to whetherMr. Champion Jones, the present superintendent of the estate,can be served with notice on behalf of the proprietors.
1 may add that, even if we were not satisfied that the provisionsof the Code cited authorize the solution we have adopted, weshould have had no hesitation in taking the same course underour inherent power to make such orders as may be. necessary forthe ends of justice referred to in section 889 of the Code. SeeOrdinance No. 42 of 1891, section 4.
In view of the terms of the – .order I have proposed, and in viewof the fact that the appellant was aware of existence of the pro-prietors, and ought to have considered the question of an alternativesuit at the beginning, I think that the proper order for costs isthat costs both here and below should be boosts in the cause.
Ennis J.—I agree.