Wismaloma v. Alapatha
1961Present : Gratlaen J. and Pulle J.
WISMALOMA et al., Appellants, and ALAPATHA, RespondentsS. C. 246—D. C. Ratnapura, 7,863
Misjoinder of defendants and of causes of action—Amendment of plaint—Circumstanceswhen it will be allowed.
Plaintiff instituted action for declaration of title to a land against five defen-dants claiming that “ acting jointly and in concert ” they were in forcible andunlawful possession of it. An issue of misjoinder of defendants and of causes ofaction was raised at tha commencement of the trial. It was established thatthe subject-matter of the action was a land which consisted of separateallotments which were possessed by separate groaps of defendants independent-ly and without any concerted action.
Held, that there was misjoinder of defendants and of causes of action.
Held further, that as the plaintiff (had throughout the trial unreasonablypersisted in denying such misjoinder, upon tne merits of the case, he shouldnot be given an opportunity by the Court of Appeal to amend the piaint so esto enable him to proceed against some of the defendants.
.^^.PPEAL from a judgment of the District Court, Ratnapura.
W. Jayawardena, for the '3rd, 4th and 5th defendants appellants.
C. V. Ranamake, with B. S. C. Ratwatte, for the plaintiff respondent.
Cur. adv. vult.
QBATIABN J.— Wismaloma o. Alapatha
May- 10, 1951. Gratiaen J.—
The question argued before us in this appeal raises a fundamental ob-jection to the constitution of the action in its present form. On 29th June,1945, the 'plaintiff, claiming to be the sole owner of an entire land (com-prising lots 1, 2, 3, 4 and 5 depicted in the plan PI filed of record) com-plained that the defendants, five in number, * ‘ acting jointly and in concertwere in forcible and unlawful possession of his property. He accordinglyclaimed a declaration of title to the entire land as against all thedefendants, and to certain consequential relief.
The 1st defendant filed -answer denying that he had claimed or possessedany part of the land since December, 1943. His position is that he hadnever claimed any interests in lots 4 or 5, but that he had been the soleowner of a separate land (comprising only lots 1, 2 and 3), which he soldto the 3rd, 4th and 5th defendants by two conveyances of 21st December,1943, and that since this date the 3rd, 4th and 5th defendants were inexclusive possession of these allotments. The 3rd, 4th and 5th defendantsfiled pleadings to the same effect, while the 2nd defendant in his answerclaimed to be in exclusive possession of lots 4 and 5 which formed aseparate land and he disclaimed any interests in the land comprising lots1, 2 and 3 claimed exclusively by the 3rd, 4th and 5th defendants. Allfive defendants specifically denied the plaintiff’s allegation that theyhad acted jointly or in concert to dispossess him of the larger land whichbe claimed tp be his. They accordingly pleaded that the action wasbad for misjoinder of defendants and of causes of action. An issue ofmisjoinder was raised at the commencement of the trial. The learnedDistrict Judge ruled against the defendants on this issue at the conclu-sion of the trial on all the issues, but without discussion of the matterswhich arose for his consideration on this point. Mr. Jayawardene, whoargued the appeal of the 3rd, 4th and 5th defendants before us, conten-ded that the plea of misjoinder was entitled to succeed on the admittedfacts, and he claimed that this objection was fatal to the plaintiff’saction. In my opinion this argument is sound.
Admittedly, the averments in the plaint, if true, would have justifiedthe institution of these proceedings against the defendants based on a.single cause of action alleged to have been committed by all of themacting in concert. It is equally apparent that if this averment ' wasfound to be untrue, the basis of the action in its present form was de-stroyed. The fundamental question on the plea of misjoinder was there-fore a question of fact. If the truth was that the 2nd defendant, actingquite independently of the other defendants, had entered into possessionof lots 4 and 5 (which he claimed in his own right as a separate land)—-and that the other defendants had similarly entered – into possession ofonly lots 1, 2 and 3 (which they claimed in their own right as a separateland), it would have been necessary for the plaintiff to vindicate his allegedrights against each group of defendants in separate proceedings basedon the single cause of action committed by him or them respectively.Mr. Hanawake contended, however, that, even if the plaintiff could not
GEATIAEN J.—Wismalcma o. Alapatha
prove that the defendants had acted in concert to dispossess him, a singleaction was maintainable because the measure of his rights was his claimto be restored to possession of a single land comprising all the dividedallotments possessed by separate groups of defendants. With greatrespect, I think that this theory has long since been exploded. I need-only refer to the ruling of the majority of the Divisional Court in Lowe v.Fernando,1 where the plaintiff claimed the entirety of a block of landin a single action against a number of defendants who were severallyin possession of separate and defined portions of it. Xt was held thatthere was a misjoinder of defendants and of causes of action in theabsence of proof that the defendants had acted in concert in depriving the■plaintiff of the possession of the entire block. It is necessary not merelyto aver but also to establish the “ acting in concert If the plaintiffin such circumstances prefers to institute one case against all the defend-ants, his action must stand or fall on his success or failure in provingthat his alleged dispossession was the result of concerted action on thepart of the defendants. The rules relating to a misjoinder of defendantsand of causes of action are intended, and particularly in cases dealingwith disputes relating to immovable property,*to prevent the embarrass-ment which is necessarily caused when the investigation'of a defendant’s-claim to a particular allotment of land is complicated by acontemporaneous investigation into the dispute concerning some otherallotment in which he has no interest whatsoever. I would respectfullyadopt the observations of Heame J. in Ettaman v. Naraynan 2, wherehe said that “ plaintiff will not be permitted, by a false allegation inhis plaint, to make it appear that there is no misjoinder, when in point•of fact, on the withdrawal of that allegation, misjoinder at once arises.In other words, he will not be permitted to proceed with a suit whichmay be embarrassing by reason of multifariousness merely because by afalse allegation in the plaint he has concealed such multifariousness ”.
When one examines the evidence of the plaintiff himself, it becomesabundantly clear that his averment that the defendants had acted in-concert could not be substantiated. “ The first defendant and hiswife and children ”, he admitted, “ claimed lots 1, 2 and 3 separatelyby themselves as a separate land. They entered the land separately.At a later stage the 2nd defendant entered lots 4 and 5 and heis possessing it separately as a separate land ”• His correspondencewith the parties at various times before the action was instituted provesbeyond doubt that he realised that each set of defendants had actedindependently of the other in asserting their respective claims. Forinstance, his proctor’s letter P18 of 7th February, 1940, addreised to"the 1st defendant and his later letter P16 of 18th January, 1945,addressed to the 2nd defendant negatives entirely the idea of concertedaction. As against this, the only attempt (I can hardly call it a seriousone) which he made at the trial to prove concert ” was his suggestionmade in re-examination, that the 1st and 2nd defendants were cousins.I do not see what bearing this circumstance by itself can have on the■question.
1 (1915) 16 N. L. B. 3S9.
(1938) 18 C. L. Rec. 111.
GRATTAEN J.— Wismaloma c. Alapatha
I' would hold that the plaintiff has failed entirely to establish thetruth of his averment- which was fundamental to the recognition ofhis right to proceed against all the defendants in the same proceedings,'lhe action, in its present form, is therefore bad for misjoinder ofdefendants and of causes of action.
The only question which remains for decision is whether we shouldmake -order dismissing the plaintiff’s action in toto or whether weshould accede to Mr. Ranawake’s request, made to us at the concludingstages of the argument in appeal, that the plaintiff should even nowbe permitted, by an appropriate amendment of his pleadings, to restricthis action either to a claim against the 2nd defendant in respect of lots4 and 5 only, or to a claim against the 3rd, 4th and 5th defendants inrespect of lots 1, 2 and 3.
An examination of earlier rulings of this Court indicates that therewere two schools of thought as to the procedure which should be adoptedwhere an action is held to be wrongly constituted for misjoinder ofcauses of action coupled with a misjoinder of defendants. On the onehand there is the view that in such cases the Court has no discretion todischarge one or some of the defendants and to allow the plaintiff toproceed against others. Abraham Singho v. Jayaneris 1 and Ettaman v.Naraynan (supra). On the other hand, there is the more lenient viewthat it is permissible, in appropriate cases, to allow a plaintiff to amendthe plaint by restricting his claim. Kanagasabapathy v. Kanagasabai 2and Sivakamanathan v. Anthony 3. It would seem that the latter viewhas been preferred in more recent years. Fernando v. FernandoTambimuttu v. Batnasingham 5; Kudhoos v. Joonoos 6 and Podihamy v.Seimon Appu 7.
My own opinion is that, having regard not only to the more recentdecisions of this Court but also to the wide powers vested in Judgesunder the Civil Procedure Code to allow an amendment of pleadings atany stage of the proceedings, we are not precluded by law (even as anappellate tribunal) from granting the plaintiff’s application to be per-mitted, after appropriate amendments of the pleadings, to restrict hisaction even at this late stage to a single cause of action against a singlegroup of defendants (the other group being discharged from the actionwith a suitable order for costs). But it seems to me that the plaintiffcannot claim this privilege as of right. On the contrary, the discretionvested in the Court must be judicially exercised after consideration ofall relevant circumstances such as the conduct of the' parties and thebelatedness of the application. If the matter be approached in this wayin regard to the present proceedings, it seems to me that it would not beproper to allow the plaintiff to amend his pleadings at this stage and toproceed with his action de novo though in a restricted form. The actionwas instituted nearly 6 years ago. The difficulty in which the plaintiffnow finds himself is referable solely to his own persistence in a positionwhich, from the facts within his personal knowledge, he could not
1 (1930) 14 C. L. Rec. 121.
(1923) 25 N. L. R. 173.
(1935) 3 G. L. W. 51.
(1937) 39 N. L. R. 145.s (1938) 40 N. L. R. 253.
(1939) 41 N. L. R. 251.
■> (1946) 47 N. L. R. 503.
PULtiB J.—Galagoda v. Wijesinghe
reasonably hope to establish. His position was demonstrably untenablewhen, at a very early stage of the trial, he admitted all the facts whichnegatived his allegation that the defendants were acting in concert.That was the latest point of time when he should have realised that heshould apply to discharge one set of defendants from the action and toproceed only against the others. Instead, he continued to contest theplea of misjoinder even in this Court. To exercise a discretion in hisfavour now is only to encourage his stubbornness. I would thereforeset aside the judgment appealed from and dismiss the plaintiif’s actionwith costs both here and in the Court below. It will of course be opento the plaintiff, if so advised, to institute separate proceedings against
each defendant or group of defendants.
Puixe J.—I agree.
WISMALOMA ., Appellants , and ALAPATHA, Respondents