B. J. Fernando and Sunthary Pillai.
19MPresent: Howard C.J. and Keuneman J.
J. FERNANDO,Appellant,and SUNTHARYPII/LAI.
et al. Respondents.
45—D. C. Colombo, 13,315.
Cause of action—Action torecover damages—Death causedbyrashnessor
negligence—Action bywidowandchildrenof deceased-—Joinderof
causes of action—CivilProcedureCode§ 11.
The plaintiffs, who arethe widowandminor childrenofSelLiah,sued
the first and seconddefendantsinthe alternative,allegingthat
one of the defendants had caused the death of Selliah by rashness ornegligence.
Held, that there was no misjoinder of causes of action.
A PPEAE from an order of the District Judge of Colombo.
H. V. Perera, K.G. (with him E. F. N. Gratiaen and D. M. Weera-singhe), for second defendant, appellant.
N. K. Chokst) (with him R. A. Kannangara), for first defendant,respondent.
J.E. M. Obeyesekere (with him S. R. Wijayatileke), for plaintiffs,respondents.
Cur. adv. vult.
KEONEMAN J.—B. J. Fernando and Sunthary Pillai.
February 25, 1944. Kevneman J.—
The plaintiffs, who are the widow and minor children of Selliah, broughtthis action against the first and second defendants in the alternative,alleging that one of the defendants had caused the death of Selliah byrashness or negligence. The only matter argued in appeal was thatthere was a misjoinder of causes of action in view of the fact that these-plaintiffs have joined in bringing the action.
For the purpose of deciding this point it is necessary to consider thonature of the action brought, but I do not think it is necessary to go into-the history of the development of this kind of action. As Innes C.J. saidin Jameson’s Minors v. C. S. A. R.1, the action is anomalous and shouldproperly be regarded as an action sui generis. The learned Chief Justiceexplained that “ While on the one hand it resembles the ordinary actionfor personal injury in that it is based on culpa, and while the breach ofduty essential to its existence is a breach of duty owed at the time of thewrongful a®t to the injured man; yet, on the other hand, the compen-sation claimable under it is due to third parties, who do not derive theirrights through his estate, but on whom they are automatically conferredhy the fact of his death ”. See also Union Government v. Wamecke2rUnion Government v. Lee3.
The question we have to decide is the application of section 11 of the''Civil Procedure Code to this form of action. The section runs as;follows: —
“ All persons may be joined as plaintiffs in whom the right to anyrelief is alleged to exist, whether jointly, severally or in the alternative,in respect of the same cause of action.”
In section 5 of the Code the term “ cause of action ” is defined as-follows:—” ‘ Cause of action ’ is the wrong for the prevention or redressof which an action may be brought, and includes the denial of a right,the refusal to fulfil an obligation, the neglect to perform a duty, and the-infliction of an affirmative injury ”.
These two sections bring into sharp contrast two aspects of the samematter, namely, (a) “ the wrong ” and (b) “ the right to relief We haveto decide whether there is only one “ wrong it does not matter that“ the right to relief ” is claimed jointly, severally, or in the alternativeby several persons.
In this particular class of case the " wrong ” alleged is a breach ofduty towards the deceased; that is one wrong. The “ right to relief ”,.however, i.e., the compensation, may be available to a number of persons.I incline to the view that the right to relief is “ several ”, but it does not.matter whether it is joint or several. In any event all these personscan join as plaintiffs in the action. In my opinion there has been nomisjoinder of causes of action. The appeal is dismissed. The appellantwill pay the costs of appeal to the plaintiffs, respondents.
Howard C.J.—I agree.
(1908) T. S. at p, 584, 5.* S. A. L. St. 1911, A.D. 664.
3 S. A. L. R. 1927., A. D. at 222.
B. J. FERNANDO , Appellant,and SUNTHARY PILLAI et al. Respondents