061-NLR-NLR-V-16-AIYAMPILLAI-v.-VAIRAVANATHA-KURRUKEL-et-al.pdf
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Present: Wood Benton J.
AIYAMPILLAI v. VAIRAVANATHA KURRUKEL et al.
21 and 22—C. R. Jaffna, 9,479.
Action to recover damages done by several dogs-—One actum against all theowners of dogs—Misjoinder—Civil Procedure Code, s. 14.
Plaintiff brought this action to recover thtf value of 24 sheepwhich, he. alleged, were killed at. the same time by several dogsowned (not jointly) by various persons, and joined the severalowners as defendants in this action.
Held, that the defendants should not have been sued in oneaction.
t j tHE facts appear from the judgment.
Wadsworth, for first defendant, appellant, in appeal No. 21.—Thedefendants should not have been joined in one action. They wereadmittedly not joint owners of the dogs. The cause of action isnot one and the same against all the defendants. (Appuhami v.Marthelis,1 Sadler v. Great Western Railway Company.2) The caserelied on by the Commissioner of Requests (Gooneratna v. Porolis 3)does not decide this point.
Balasingham, tor the second and third defendants, appellants, inappeal No. 22, took the same objection.
Arulanandam, for the plaintiff, respondent.—The objection was nottaken at the proper time—when the issues were framed. It wouldnot be possible to apportion the liability if the defendants were tobe sued in separate actions. That was why in Gooneratna v. Porolis3the defendants were allowed to be sued together.
February 21, 1913. Wood Renton J.—
This appeal, and the allied appeal No. 22, C. R. Jaffna, No. 9,479,arise out of an action instituted by the plaintiff against the first,second, and third defendants for the value of 24 sheep alleged tohave been killed by the defendants’ dogs, and for damage causedto the plaintiff by not being able to manure his fields after the deathof the sheep. The first defendant filed one answer. The secondand third defendants filed another. The second and thirddefendants in their answer took the point that they and the first
i (1906) 9 N. L. R. 68.* (1896) A. C. 460.
» (1899) 4 N. L. R. 318.
IMS'.
1913.
WoodBenton J.
Aiyatnpillai0. Vairava-natkaKurrukel
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defendant could not be sued together, inasmuch as the plaintiff’scause of action against each of them was different. The case wentto trial, however, solely on the merits. But the defendants’ counselreturned to the charge on their point of law in their closing argu-ments. The learned Commissioner of Bequests held that the threedefendants had been properly sued together, inasmuch as their dogshad trespassed jointly, and he gave judgment in favour of theplaintiff against each of them on the facts.. The Supreme Court gaveleave to appeal in each case on the facts, and the defendants haveappealed also on the law. There is no need to consider the evidence,for I have come to the conclusion that the appeals must be allowedon the law. The Commissioner of Bequests regarded Gooneratna v.Porolis 1 as an authority in favour of his decision on the point of lawinvolved in this case. The only point there, however, was theprinciple of the apportionment of damages done by cattle belongingto several owners. No objection to the constitution of the actionwas taken either in the District Court or in appeal. In Appuhamiv. Marthelis 8 I had occasion to examine the authorities in regard tothe joinder of causes of action under the Civil Procedure Code. Insection 14 of the Code the words l¥ in respect of the same cause ofaction ’’ place the law qf Ceylon in this matter precisely on the samefooting as that on which the English practice stood before thesubstitution of the word “ transaction ” for the expression “ causeof action ” in the corresponding English rule. The case of SadleT v.Great Western Railway Company,3 makes it quite clear that, undercircumstances such as we have here to deal with, there is a separatecause of actfon as against each defendant. In the more recent caseof Bullock v. London General Omnibus Company,4 it is pointed outthat the substitution in the English rule of the term “ transaction ”for “ cause of action ” has alone made it possible to join defendantsin such cases as the present. The respondent’s counsel contendedthat the objection in the present case had been taken too late, andcould not be given effect to. I do not think that that argumentcan stand. The objection in question was raised in the answer oftwo of the defendants, and the third is equally entitled to the benefitof it. No doubt an issue should have been framed on the point.But there is no evidence on the record of any intention on the partof the defendants to abandon it. On the contrary, it was expresslyrelied upon in the concluding argument, and is dealt with at lengthby the Commissioner of Bequests.
I set aside the decree under appeal, and direct that the plaintiff’saction be dismissed with the costs of the action and qf the appeal.The plaintiff’s right to proceed against the first defendant separately,if he is so advised, is reserved.
Appeals allowed.
i (1899) 4 N. L. R. 318.3 (1896) A. C. 450.
* (1906) 9 N. L. R. 68.* (1907) 1 K. B. 264.