106-NLR-NLR-V-16-LOWE-v.-FERNANDO-et-al.pdf
( 398 )
1913,[Full Bench.]
Present: Wood Renton A.C.J., Pereira J., and De Sampayo A.J*LOWE u. FERNANDO et at.
106—D. C. Ohilaw., 4,808.
Misjoinder of parties and causes of action—Action for declaration oftitle—Defendants severally in possession of separate blocks—CivilProcedure Codet ss. 14 and 5.
Held, per Wood Renton A.C.J. and Pebeiba J. (De SampayoA.J. dissentiente)—That where a plaintiff claimed the entirety of ablock of land on one title and complained that the defendants wereseverally in possession of separate and defined portions of it, itwould be misjoinder of defendants and causes of action to instituteone action against all the defendants for the recovery of the wholeblock, unless it could be shown that the defendants were acting inconcert in depriving the plaintiff of the possession of the entireblock.
Per Pebeiba J.—The words “ denial of a right ” as used in theinterpretation of “ cause of action ” in section 5 of the CivilProcedure Code do not mean , the mere verbal denial of a right,but a withholding of, or refusal to allow the exercise of, a right.
'J'HE facts are set out in the judgment of Wood Renton A.C.J.
J.Grenier, K.C. (with him V. Grenier)t for the defendants,,appellants.—There is a misjoinder of defendants and causes of action*The several defendants have not been acting in concert. They are
IMS.
( 899 )
in possession of different portions of the land. Section 14 of theCivil Procedure Code only permits the joinder of defendants againstwhom the right to any relief is alleged to exist, whether jointly,severally, or in the alternative in respect of the same cause of action.Here the cause of action is not the same. The cause of action againstone set of defendants is that they are unlawfully in possession ofone lot, and of another set of defendants is that they are in possessionof another lot. The decisions under the Indian Code do not applyto Ceylon on this point, as the words of the Indian section aredifferent from the words of our section. The words of the Indiansection are " same cause or matter."*
The words of the Indian Code are wider. But* even in India itwas held in Sudhenda Mohun v> Durga1 and Rank Narain v.Annoda Prosad Joshi 2 that a joinder of defendants and causes ofaction in a case like the present is irregular.
Counsel also cited Sado v. Nona Baba2 Aiyampillai v. Vaira-vanath Kurrukel,4 Parbati. Kunwar v. Mahmudfatima,* Smutfbh*waite v. Hannay .6 '
A. St. Yt. Jayewardene (with him Sansoni), for plaintiffs, re-spondents.—Jayamaha v. Singappu 7 is a direct authority in point.Indian cases are in conflict. The Indian cases discuss the questionwhether there is the same cause of action in a case like this. Inthe later Indian cases it has been held that there is no misjoinder ina case like this. See Ishan Chunder Hazra v. Rameswar Mondul, 8Nundo Kumar Nasker v. Banomali 'Gayan.9
[Wood Benton A.C.j.—If two persons are encroaching on twodifferent sides of an estate, can you sue both in one action?] Yes.Plaintiff cannot know that they are not acting in concert.'[Pereira J.—-Plaintiff does not say that the defendants acted inconcert.]
Grenier, K.G., in reply..1
Cur. adv. vult.
October 22, 1913. Wood Benton A.C.J.—
The plaintiffs in this action claim a declaration of title to, and theejectment of the defendants from, four lots of land marked A, B, D,and F in the sketch filed with the plaint. They allege that thefirst, second, third, fourth, and fifth defendants are in possessionof A, the sixth defendant of B, the seventh and eighth of F, and theninth and tenth of D. These allotments form a single land, andthe plaintiffs claim title to each of them through the same source.But the lots are distinct, and each group of defendants-sets up title
(1887) 14 Cal. 435.* (1907) 29 AlJ. 267.
(1887) 14 Cal. 681..6 (1894) A. C. 501. .
s (1907)11 N. L. R. 162.* (1910713 N. L. R. 348,
* (1913) 16 N. L. R. 231.* (1897) 24 Cal. 831.
« (1902) 29 Cal. 871.
Lowe 0.Fernando
1913.
Wood
Renton
A.C.J.
Lowe v,Fernando
( 400 )
only to the particular lot- of which they or he are in possession.There is no suggestion that the defendants are acting in concert.In these circumstances the question has arisen whether the plaintiffscan sue them all in a single action. There is admittedly the objectionto the defendants alleged to be in possession of each of the separatelots being sued in respect of such lots. The point is whether theplaintiffs are entitled to say that as these lots, although divided,constitute only one land, they have one cause of action only againstthe collective body of persons in possession of different portions ofthe land. Section 14 of the Civil Procedure Code provides that“ all persons may be joined as defendants against whom the rightto any relief is alleged to east, whether jointly, severally, or in thealternative in respect of the same cause of action.” Is then thecause of action here one and the same? In my opinion it is not.The lots are divided. Each group of defendants disputes theplaintiffs' title only in regard to the lot of which it is itself inpossession. His cause of action against each is its denial of histitle to that lot and to that lot alone. He has, therefore, a differentcause of action as against each group. If we uphold the view takenby the learned District Judge in this case, I see no reason why aplaintiff, who has inherited from his father a number of distinctlands within the same province, should not sue, in one and the sameaction, any number of different persons in possession of them,merely by reason of the fact that they descend to him fromone ancestor. The Indian authorities on the point are divided.The cases of Sudhenda Mohun v. Durga1 and Ram Narainv„ Annoda Prosad Joshi 2 support the view which I have heretaken of the meaning of section 14 of the Civil Procedure Code.They are decisions on the corresponding provision in the old IndianCode of Civil Procedure. Ishan Chunder Hazra v. RameswarMondul3 and Nimdo Kumar Naskerv. Banomali Gay an4, are decisionson the other side, although I agree with the observation that fellfrom my brother Pereira during the argument of the appeal thatthe idea of concert runs through most of the Indian authorities inthat sense. The decision of Sir Joseph Hutchinson C.J. and vanLangenberg A.J. in Jayamaha v. Singappu 5 is not, I think, on allfours. The defendants there claimed title under the same sarmas,and although they had acquired title at different dates, it wouldappear from the judgment that they were acting in concert indenying the plaintiffs' title as a whole. The cases*of Appuhamy v.Marthelis Eosa,6 8ado v. Nona Baba,7 and AiyampiUai v. VairavanathKurrukel* in which English authorities to the same effect are cited,show what has been the view hitherto taken in Ceylon as to the
(J887) 14 Cal 435.2 (1887) 14 Cal 689.2 (1897) 24 Cal 831.
(1902) 29 Cal 871.
(1910) 13 N. L. R. 348.« (1906) 9 N. L. R. 68.
(1907) 11 N. L. R. 162.« (1913) 16 N. L. R. 231.
( 401 )
meaning of ” cause of action ” in section 14 of the Civil ProcedureCode. 1 prefer the reasoning in the older to that of the laterIndian decisions above referred to.
I agree to the order proposed by my brother Pereira.
Pereira J.—
In this case the question is whether there is not a misjoinder ofcauses of action and of the defendants. The plaintiff traces titleto the entirety of the block of land shown on sketch Z, and complains•that the defendants are severally in possession of separate anddefined portions of it. He states in paragraph IB Of the plaint thatthe first, second, third, fourth, and fifth defendants are in possessionof the portion marked A, the sixth defendant of the portion markedB, the seventh and eighth defendants of the portion marked F, andthe ninth and tenth defendants of the portion marked D. Fromwhat follows in the plaint and the discussion that took place onJuly 30, 1913, it is clear that the plaintiff’s case is that the differentdefendants or sets of defendants are in possession, independentlyof one another, of different portions of the land. That beingso, is the action maintainable in its present form ? The sectionof the Civil Procedure Code under which it is sought to justifythe present form of action is section 14, which enactB that allpersons may be joined as defendants against whom the right toany relief is alleged to exist, whether jointly, severally, or in thealternative in respect of the same cause of action. That sectionsubstantially enacts the provision of Order 16, Buie 4, and Order 18,Buie 1, of the Buies of the Supreme Court of Judicature in England.The former allows the joinder of several persons as defendantsagainst whom different forms of relief are sought, and the latterauthorizes the joinder in one action of several causes of action; andin Berstal v. Beyfus 1 it was held that where the cause of actionagainst one defendant is totally disconnected with that against theother defendants, except so far as it arises out of an incident in thesame transaction, there is misjoinder, and it is not the case con*templated by Order 18, Buie 1. In the course of his judgment LordSelbome L.C. observed: “ To bring into one claim distinct causesof action against different persons, neither of them having anythingto do with the other (and only historically connected in the way Ihave suggested), is not contemplated by Order 18, Buie 1, whichauthorizes the joinder, not of several actions against distinct persons,but of several causes of action.” There are two decisions of theIndian Courts (see Sudhenda Mohan v. Durga 2 and Ram Narain v.Annoda Prosad 3) that entirely support the view that I take in thepresent case, but there are others that apparently favour the
i (1884) 26 Ch. D. 35.* (1887) U Gal. 486.
1913.
Wood
Benton*
A.C.J.
Lowe v.Fernanda
31-
s (1887) 14 Cal 681.
1913.
Pbbbiba J.
Lowe o,Fernando
( 402 )
contrary view. But in the application of decisions of the IndianCourts it must be remembered that there is no definition in theIndian Code of Civil Procedure of the expression ** cause of action/'and it is left to the Courts to evolve a suitable definition as theterm presents itself for interpretation in individual cases. OurCode defines " cause of action " as " the wrong for the preventionor redress of which an action may be brought/* including, inter alia,the denial of a right. I might at once explain that in my view theexpression “ denial of a right ” as used here does not mean the mereverbal denial of a right. The word “ denial " here is used in thesecondary sense of a " withholding " or 41 refusal to grant/* as theword " deny *' is used in the phrase “ to deny bread to the hungry."I say this because it has been argued that the mere fact that eachdefendant, by way of a step in the defence, denies the plaintiff’stitle to the entirety of the block of land shown on sketch Z gaveth9 plaintiff a common cause of action against all the defendants.I think that this contention is altogether untenable. When eachof two persons has ousted the plaintiff from a separate and distinctportion of one block of land and holds possession of such portion,the cause of action against each is the wrong done by him, and thatis his unlawful ouster of the plaintiff from the particular portion ofland claimed by him and the denial by him to the plaintiff ofenjoyment of that portion. The two persons cannot be suedtogether, unless, of course, it can be shown that they were actingin concert or conspiracy with each other in taking possession of theplaintiff's land.
I do not think that the present action can be maintained by theplaintiff in its present form. As there is not only a misjoinder ofparties, but a misjoinder of causes of action, I think that the propercourse will be to dismiss the plaintiff's claim, reserving,to him theright to proceed against each defendant or each group of defendantsclaiming a separate and distinct portion of the land by a separateaction. I would set aside the order appealed from and makeorder as stated above. The appellant is, I think, entitled to hiscosts in both Courts.
De Sampayo A.J.—
In this action the plaintiffs alleged title by right of purchase to acertain specific land and sued the defendants, who are ten in number,for a declaration of title and for possession and damages. To theplaint was annexed a sketch of the land, and it was stated that thefather of the first, second, third, and fourth defendants was planterof the portion marked A, the sixth defendant of the portion markedB, the father of the tenth defendant and grandfather of the ninthdefendant of the portion marked D, and the father of the seventhand eighth defendants of the portion marked F. The plaintiffsthen proceeded to state their grievance as follows:—"The defendants
( 408 )
above named, of whom the first, second, third, and fourth defendantsare in possession of the portion marked A, the sixth defendant ofthe portion marked B, the seventh and eighth defendants of theportion marked F, and the ninth and tenth defendants of theportion marked D, dispute the title of the plaintiffs to the landowner'sshare of the said portions, to wit, the entirety of the soil and a halfshare of the trees thereon, and are since January 17, 1912, in thewrongful possession thereof, to the plaintiffs’ loss and damage of thesum of Rs. 750.” Each set of defendants filed a separate answerdenying the plaintiffs’ title. The first, second, third, and fourthdefendants further claimed the planter’s half share of the plantationon lot A, and pleaded that the sixth defendant was entitled to thelandowner’s half share. The sixth defendant claimed the entiresoil and the landowner’s half share of the plantation on lots A and Fand certain other lots, with which we are not concerned, and hefurther pleaded the title of the ninth defendant to the landowner’sinterest in lot D; the seventh and eighth defendants claimed theplanter’s share in lot F, and pleaded the title of the sixth defendantto the landowner’s interest therein; the ninth defendant claimed theplanter’s as well as the landowner’s interest in lot D, and the tenthdefendant, in addition to denying the plaintiffs’ title, disclaimed allright in himself, and pleaded that the ninth defendant was entitledto the lot D.
At the trial certain issues relating to the question of plaintiffs*title and common to all the defendants were stated, as well as otherissues special to the defences and claims set up by the several setsof defendants. One of the issues was whether there was a misjoinderof defendants and of causes of action. The District Judge dealtwith this preliminary issue and decided it in favour of the plaintiffs.The present appeal is from that decision.
The contention of the appellants is that the plaintiffs had aseparate and a distinct cause of action in respect of each portion ofthe land, and that the joinder of the several defendants in oneaction was bad. The provision of the law on this subject is containedin section 14 of the Civil Procedure Code*, which enacts: ” All personsmay be joined as defendants against whom the right to any reliefis alleged to exist, whether jointly, severally, or in the alternativein respect of the same cause of action. And judgment may be givenagainst such one or more of the defendants as may be found to beliable, according to their respective liabilities, without any amend-ment-.” The question accordingly is, whether the defendants arejoined in this action “ in respect of the same cause of action ” withinthe scope of that section of the Code. I venture to think that theplaint discloses but one cause of action, and that the defendantsare properly joined in one action.
In the first place, it should be borne in mind that this is an actionfor ejectment, or what under our law should more properly be
1918.
De SampayoA.J.
Lowe v,Fernando
IMS.
Db SampayoA.J.
Lowe v.Fernando
( 404 )
termed ret vindicatio, in respect of a land which plaintiffs claim asone whole. The plaintiffs seek to establish their title to the land,of which, as a result of the joint or several acts of the defendants,they have been completely kept out of possession, and to recoverdamages from the defendants for their unlawful possession of it.It is, therefore, what in the old classification would have been calleda mixed action, that is to say, one partaking of the nature of a realand a personal action. It is not a mere personal action founded on -tort, such as an action for damages for trespass would be.
In the next place, the expression “ cause of action ” generallyimports two things, viz., a right in the plaintiff and a violation of itby the defendant, and “ cause of action means the whole cause ofaction, i.e., all the facts which together constitute the plaintiff’s. right to maintain the action ” (Dicey’s Parties to an Action, ch. XI.,section A), or, as it has been otherwise put, “the media upon whichthe plaintiff asks the Court to arrive at a conclusion in his favour ’’(Lord Watson’s judgment in Chand Kour v. Partab Singh 1). Seealso Dingiri Menika v. Punchi Mahatmaya,* where Wood Renton J.said that, “ for the purpose of determining whether or not twocauses of action are the same, we have to look not to the mere form,but to the grounds of the plaint and to the media on which theplaintiff asks for judgment.’’ This is the sense in which the term isunderstood both in the English and Indian law, and I cannot thinkthat our Civil Procedure Code, which in regard to the frame of anaction is founded on the Indian Code of Civil Procedure andultimately on the English rules under the Judicature Acts, meantto make a radical alteration of its meaning. In Samichi v. Pieris,3which is a Pull Court decision on the subject of res judicata, theexpression “ cause of action ” occurring in section 207 of the CivilProcedure Code was by the majority of the Court given its primarymeaning, so as to include ‘ ‘ the right in virtue of which the claim ismade.’’ It is true that in section 5 of the Civil. Procedure Code“ cause of action ” is defined as “ the wrong for the redress of whichan action may be brought,” and it may be that this definitiondirects attention more to the violation of the right than to theright violated, but in my opinion it is not meant to exclude thelatter. “ The wrong ” is the combination of the right and itsviolation, and so the cause of action is “ the wrong ” in the broadsense referred to. Moreover, the definition is not absolute, but isto be good “ unless there is something in the subject or contextrepugnant thereto.” To my mind the narrow meaning contendedfor on behalf of the defendants cannot without repugnancy beapplied to section 14, which is under consideration. For instance,the right to any relief against several defendants cannot exist inthe alternative “ in respect of the same cause of action ” if the1 (1888) 16 Col. 98.2 (1910) 18 N. L. R. 63.
2 (1913) 16 N. L. R. 957.
1913.
( 405 )
narrow meaning is assigned to the expression. Ifr this connectionI may refer to the class of cases in which a purchaser of land isallowed to join in one action a claim founded on tort against atrespasser, and also a claim founded on the contract of sale againstthe vendor, e.g., Fernando v. Wane 1 and Paules Appukamy v. TheAttorney-General* In the case of Child1 v. Stenning,3 in which thecorresponding provision in the English rules was considered,‘Mellish L.J. observed: “ If we were to say that two persons couldnot be joined as defendants, unless the causes of action against themwere exactly the same, the object of the Legislature would bedefeated." In a note in the Annual Practice, under Buies 4 and 5of Order 16, reference is made to the Irish case of OfKeefsv. Walsh,4 in which it appears to have been stated that “ cause ofaction ’’ there meant the subject-matter founding the action, andnot merely the technical cause of action. Similarly, even if thedefinition in section 5 of our Code is confined to the technical causeof action, viz., the mere act of wrong complained of, which I haveabove ventured to say it is not, I think that as used in the particularsection under consideration the expression must be regarded asincluding the subject-matter founding the action.
The English cases referred to at the argument, such as Smuirth-waite v. Hannay5 and Sadler v. G. W. B. Co.,6 and the local decisionswhich follow them, do not afford much guidance. They are allcases in which claims for money in respect of torts or contractswere made against several defendants, and I see a clear distinctionbetween such cases and an action for recovery of land. I have notbeen able to discover any case under the English rules whichinvolves a claim for possession of land; but as illustrating thegeneral principle under the English law, I may refer to Commissionersof Sewers v. Glasse,7 in which it was held that a suit by claimants torights of common within a forest against the lords of several manors,who had made separate inclosures of the waste land, and some ofwhom had dug up and destroyed the pasture on the wastes remain-ing uninclosed within their respective manors, was not bad formultifariousness. This, no doubt, was a Bill in Chancery beforethe Judicature Acts, but it is well known that the rules under theJudicature Acts with regard to joinder of parties and causes of actionwere intended to extend, and not to restrict, the old practice, sothat multiplicity actions might be avoided. On the other hand, thecases decided in the Courts of India under the corresponding sectionof the Indian Code of Civil Procedure justify the form of actionadopted in this case. Ishan Chunder Hazm v, Rameswar Mondol,8Nundo Kumar .Nasher v. Bamomali Gay an, 9 Parbati Kunwar v.
(1891) 9 S. C. C. 189.s(1894) A. C'501.
(1907) 3 BaL 286.«(1895) 2 Q. B. 688*
a (1877) 5 C. D. 695.9(1872) 41 L. J. Ch. 409.
* (1903) 21. R. 718.8(1897) 24 Cal. 831.
9 (1902) 29 Cal. 771.
Ds SampayoA.J.
Lowe v.Fernando
( 406 )
1813.
De SampayoA.J.
Lowe «.Fernando
Mahmudfatima.1 The following passage in the second of theseoases will be useful as illustrating what 1 have said as to the Englishpractice: “In England, as was pointed out in Ishan ChunderHazra v. Rameawar Mondol,* in an action in ejectment ‘ all theparties in possession are joined, ’ and this includes the lessor as wellas the tenants, if the lessor happens to be in possession of part ofthe land in suit (see Dicey on the Parties to an Action, p. 495,n, (e)). The old action of ejectment has, it is true, been super-seded in England by the modern action for the recovery of land,but the rule as to the persons who should be made defendant to theaction has not been changed, save in so far that it is no longercompulsory on the plaintiff to make all persons in actual possessiondefendants—a relaxation of the old rule which is in favour of theplaintiff—though it is considered to be the more convenient andproper course that all such persons should' be made defendants.”As against these authorities counsel for the appellants relied onSudhandu Mohun Roy v. Durga Dasi,a but that case, though cited,was not followed in the later cases above referred to, and cannot Ithink be any longer regarded aa an authority on the point at issue.It was said that in all these cases there was the underlying fact of acombination among all the defendants to keep plaintiff out, butwhen the cases are examined it will be found that such a circumstancedid not determine the ratio decidendi. On the contrary, in the caseof Ishan Chunder Hazra v. Ramesioar Mondol, supra, the necessityfor a combination was expressly urged by counsel, but the Court tookno notice of the argument. The general principle deducible fromthese cases is that in an action such as this the plaintiff may join inone action all the persons in possession of the property he claims,whether they are in possession of specific portions of it separatelyor the whole of it jointly. It is true that the plaintiffs in theirplaint in this case stated that some defendants were in possessionof one portion and others of another portion, and so forth, but thatdoes not, in my opinion, alter the true nature of their action. Thestatement of these details was in consonance with the rules ofmodem pleading, which require the plaint to contain a plainstatement of all the circumstances constituting the cause of action,and was likewise convenient in order to bring out the fact that thesubject of the claim was the landowner’s interest in the land, andthat the plaintiffs had no complaint as to the defendants’ possessionof the planter’s share in the land. Moreover, if the element ofconcert or combination is absolutely necessary to entitle theplaintiffs to join all the defendants, it will, I think, be found in thefact that they set up the title of the sixth and ninth defendants asagainst the plaintiffs. It was said at the argument that theexpression “denial of a right ” occurring in the definition in section 5
i (1907) 29 All. 267. .* 11897) 24 Cal. 381.
a (1887) I. L. R. 14 Cal. 435.
1913.
( 407 )
of the Code did not mean a mere verbal denial. That no doubt isso, but in this case each set of defendants has done an act inpursuance of the denial, that is to say, his possession of a portion ofthe land of which the landlord's interest is denied to the plaintiffsand is assigned by each of them to one or other of their own number^and, as a consequence, the plaintiff is kept altogether out of the land.
Lastly, this case is covered by the authority of Juyamahcu v.jSingappu,1 where the Court accepted and acted on the view that“ the plaintiff's cause of action against all the defendants is one,viz., to recover the land, that the defendants may set up whatdefences they please, but that the plaintiff is entitled to recoverpossession of his land as a whole and not in fragments." It wassought to distinguish that case by reference to the fact that theclaims of the defendants to the separate portions were referable toone sawnas, and thus the element of combination was present. I donot see how the nature of the defendants* title can be said to haveconverted into one cause of action what according to the argumentwould have constituted distinct and separate causes of action, butit is sufficient to remark that the fact of the defendants claimingthrough the same source of title had nothing to do with the decision.As the present case is being considered by a Full Bench, it is, ofcourse, competent for us to over-rule that decision, but as I agreewith it I follow it. Some difficulty was also suggested to the effectthat the decree would have to give separate damages against eachset of defendants. But I do not see why a decree may not be inthat form. The English rules provide for such a case, and I thinkour section 17 has the same purpose in view.
In ray opinion the plaintiffs’ action is rightly constituted, and 1would dismiss this appeal with costs.
Appeal allowed.
Db SampayoA.J.Lowe v.Fernando
♦
* (1910) IS N. Zi. A. 348.