033-SLLR-SLLR-1996-V-2-COLGAN-AND-OTHERS-v.-UDESHI-AND-OTHERS.pdf
COLGAN AND OHTERSV.
UDESHI AND OTHERS
SUPREME COURT.
G. P. S. DE SILVA, C.J.,
RAMANATHAN, J. ANDWIJETUNGE, J.
S. C. APPEAL NO. 82/95
A. APPLICATION NO. 233/95 (REVISION)
C. COLOMBO 4146/SPL13TH SEPTEMBER, 1996.
Civil Procedure Code – Misjoinder of plaintiffs and causes of action – Sections17 and 36(1).
Five Plaintiffs sued three Defendants, inter alia, for a permanent injunctionpreventing them from running a school on the land and premises in suit andpleaded the several deeds by which they acquired title to a “divided anddefined allotment out of the land described in schedule A” to the plaint, andshown in plan 1879A. There was no division of land on the ground. Theplaint averred that the Plaintiffs jointly possessed the land until they weredispossessed.There was one house, and it was in that house that the schoolwas established.
Held:
It could not be said that the plaint discloses only one cause of action, for onewrongful act which causes injury to more than one person may give rise toseparate causes of action. However, on the facts all five Plaintiffs were‘jointly interested” in each cause of action and the joinder was permissibleunder Section 36(1) of the Civil Procedure Code.
Per G. P. S. de Silva, C.J.
”… it is well to remember that a court should not be fettered by technicalobjections on matters of procedure”
Cases referred to:
Weragama v. Bandara – 77 NLR 289.
Podihamy v. Simon Appu 47 NLR 503, 504.
AN APPEAL from a judgment of the Court of Appeal.
R. K. W. Goonesekera with M.Y.M. Faisz for 1st and 2nd Defendants -Appellants.
Romesh de Silva, P.C., with Palitha Kumarasinghe for Plaintiffs-Respondents.
Cur. adv. vult.
29th September, 1996.
P. S. DE SILVA, C.J.
The short point which arises for decision on this appeal is whetherthe plaint is “defective’’ by reason of the misjoinder of Plaintiffs andcauses of action. This objection was taken by the Defendants beforethe District Court and it was overruled. The Defendant's application tothe Court of Appeal by way of revision was also unsuccessful. Hencethe present appeal by the Defendants to this court.
In this action the five Plaintiffs sued one Mrs. Colgan (1stDefendant), Crescent Schools International (Pvt) Ltd., (2nd Defendant),and the Urban Development Authority (3rd Defendant), seeking anenjoining order, interim injunction and a permanent injunction preventingthe 1st and 2nd Defendants, their directors, servants and agents fromrunning a school and/or educational institution under the name ofCrescent International School in the premises described in schedule Ato the plaint. The Plaintiffs pleaded the several deeds by which theyacquired title to the land and premises in suit. Mr. R. K. W. Goonesekerfor the Defendants-Appellants laid much emphasis on the Plaintiff!assertion in the plaint that they acquired title to a “divided and defineallotment out of the land described in schedule A and shown in plan1879A. Mr. Goonesekea argued that there was more than one causeof action pleaded in the plaint inasmuch as the true complaint of theplaintiffs was the violation of their distinct and separate rights to theproperty. On this basis, Mr. Goonesekera contended that there is amisjoinder of plaintiffs and causes of action and relied on section 17 ofthe Civil Procedure Code. The relevant part of section 17 enacts that“Nothing in this Ordinance shall be deemed to enable plaintiffs to joinin respect of distinct causes of action.”
On the other hand, Mr. Romesh de Silva for the Plaintiffs-Respondents submitted that it was the case for the Plaintiffs (as setout in the plaint) that they were jointly in possession of the land andpremises in suit, that on or about the 14th of December 1993 that the1st Defendant with a crowd “of about 30 thugs some of whom werearmed forcibly and unlawfully entered the land” and dispossessed them.Counsel referred to the definition of the term “cause of action” in section5 of the Civil Procedure Code and urged that the Plaintiffs complain ofonly one “wrong” and that is (to use Counsel’s own words) “the carryingon of the school in the premises in suit.” It was also pointed out to usthat there was no division or separation of the land on the ground. Mr.de Silva stressed the following facts as pleaded, namely, (i) jointpossession of the land by the Plaintiffs until they were dispossessedon 14.12.93; (ii) that there was one land, one house, and it was in thathouse that the school functions. And so counsel contended that therewas but one cause of action and relied on section 11 of the CivilProcedure Code.
Mr. Goonesekera cited the judgment of Samerawickrema, J. inWeragama v. Bandara.m This case is of much assistance in decidingthe appeal before us. Samerawickrema, J., while holding that "where Ahas a cause of action against two Defendants and B has a separatecause of action against the same two Defendants they cannot, underour law, unite them in one action on the grounds that both causes ofaction arise from the same acts or series of acts…” goes on to statethat secton 17 of the Civil Procedure Code must be read with “thesecond part of the first paragraph of section 36(1) of the Civil ProcedureCode” (at page 292). The relevant part of section 36(1) reads thus:“and any Plaintiffs having causes of action in which they are joinlyinterested against the same Defendant or Defendants may unite suchcauses of action in the same action.” Samerawickrema J., holds thatthe expression “interested” in section 36(1) “does not mean having aninterest from affection, curiosity, novelty or the like but having an interestin the sense of having a pecuniary or other claim or legal right orliabilities that may be affected”.
The averments in the plaint show that the plaintiffs were jointly inpossession of the property and on one particular date they were“dispossessed”. I am not inclined to agree with Mr. de Silva that theplaint discloses only one cause of action, for one wrongful act whichcauses injury to more than one person may give rise to separatecauses of action. However, on the facts alleged in the plaint I hold thatall five plaintiffs were “jointly interested” in each cause of action andthe joinder was permissible in terms of the second part of the firstparagraph of section 36(1) of the Civil Procedure Code.
Before I conclude I wish to add, that it is well to remember that “acourt should not be fettered by technical objections based on mattersof procedure”, per Dias, J., in Podihamy v Simon Appu,{2)
For these reasons, the appeal fails and is dismissed, but in all thecicumstances, without costs.
RAMANATHAN, J. -1 agree.
WIJETUNGA, J. -1 agree.
Appeal dismissed.