141-NLR-NLR-V-24-APPUHAMY-et-al.-v.-WILLIAM-SINGHO-et-al.pdf
( 472 )
1982*
Present: De Sampayo and Schneider JJ.APPUHAMY et al. v. WILLIAM SINGHO et «Z.140— (Inty.) Kegalla, 5,-559.
Action by lessees for cancellation of /«u#r—One plaintiff becoming lunatic,pending action, and disappearing—Right of other plaintiff to goon with the actioti.
Plaintiffs who were lessees instituted uu action for the cancellationof a lease. Pending the action the first plaintiff became a lunaticand haddisappeared, and it wasnot possibleto take proceedings
to havehimadjudged a lunaticand properlyrepresented in tho
action.
Held,thatin the circumstances the secondplaintiff could not
go on with the action as far as his share was concerned.
" Theonlyalternative that thesecond plaintiff has is to with-
draw horn the action and institntc, if he is so advised, a separatenotion an his own account.*’
( 478 )
rp HE facts appear irom the judgment.
Navaratnam, for the appellants.
H. V. Perera, for the respondents.
December 8, 1922. De Sampayo J.—
The real appellant in this case is the second plaintiff, althoughthe petition of appeal is filed by the proctors who originally hada proxy from both plaintiffs. The plaintiffs, as lessors of seven-ninths share of a certain land, sued the defendants, their lessees,for a cancellation of the lease and for damages, on the ground thatin violation of their obligation under the lease they had causeddamage by cutting down trees. The defendants filed a defencedisputing the plaintiffs’ claim. The plaint and the answer werefiled as long ago as August and October, 1920. In January, 1922,the defendants’ proctor moved that no steps having been takenfor more than a year, the action to abate. If this motion had beendealt with simpliciter, much difficulty which has now arisen wouldhave been avoided. But in connection fith that motion certaindiscussions took place on September 5 last. It was then admittedthat the first plaintiff, who is said to be a lunatic, had disappeared.The plaintiffs/ proctor stated that he could not proceed on behalfof the second plaintiff alone, because he was suing for a cancellationof the lease to which the absent plaintiff was also a party. Thedefendants’ proctor undertook to take proceedings under chapter39 of the Civil Procedure Code, and the case was ordered to becalled on September 26. On that day the record reads: •“ That itwas agreed both by the plaintiff and the defendant that the firstplaintiff was a lunatic, but he cannot be adjudged a lunatic as hisresidence is not known, and steps cannot be taken under thesection applicable to the matter.” The Court then ordered thatthe case must be laid by pending the taking of further steps tohave the first plaintiff declared a lunatic. The present appealwas filed on behalf of the plaintiffs from that last order. Counselon behalf of the plaintiffs-appellants tells us that what is desiredis to allow the second plaintiff to go on with the action so far ashis share of the property is concerned. He cites sections 12 and17 of the Civil Procedure Code in support of this desire on the partof the second plaintiff. But it is clear that neither of those sectionsapplies to the circumstances of the present case. If the firstplaintiff cannot be traced and his condition adjudicated on itseems to me that the only alternative that the second plaintiff hasis to withdraw from this action and Institute, if. he is advised, aseparate action on his own account. This appeal is not sustainable,and it is, therefore, dismissed, with costs.
Schnmdbb J.—I agree.
Appeal dismissed.
m
Appmhamyv. wWiamSingfio