( 68 )
Present; Mr. Justice Wood Renton.
DON SIMON APPUHAMI et al. v. MARTHELIS ROSA.
B. Negombo, 13,370.
Misjoinder of causes of action—Several persons injured by one wrongfulact—Distinctcauses of action—One suit—CivilProcedure Code,
ss. 11 and 17.
– Where twopersons, who were arrested and charged together
with. the same offence in the same case and were acquitted, suedin one action for damages for malicious arrest and maliciousprosecution—
Held, that the cause of action accruing to each was separateand distinct, and that the two causes of action should not have beencombined, and that the. suit was bad for misjoinder of canses ofaction.
The principle laid down in Sadler v. The Great Western RailwayCo. (1896) App. Cas. 450 -followed.
The authority of Booth v. Briscoe (2 Q. B. D. 496) doubted.
HE plaintiffs sued the defendant in one action for damages formalicious arrest and malicious prosecution, in that the defen-
dant falsely and maliciously and without reasonable or probablecause, caused them to be arrested on a charge of causing mischiefto a bull and thereafter prosecuted them for the same offence in thePolice Court of Negombo.
The Commissioner entered judgment in favour of the plaintiffsfor Rs. 105.
The defendant appealed.
W. Jayewardene, for defendant, appellant.
There are two plaintiffs in the case. They have two distinctclaims, and two distinct causes of action against the defendant. Theprinciple involved is the same as in Smurthwaite v. Hannay (1)which was followed in P. & 0. Steam Navigation Do. v. TsuneKijima (2) and Carter v. Rigby (3). The case of the improperjoinder of defendants is similar in principle. In Sadler v. TheGreat Western Railway Co. (4) the House of Lords held that claimsfor damages against two or more defendants in respect of theirseveral liability for separate torts cannot be combined in one action.A tort is a separate tort in respect of each man who complains.
Section 26 of the Indian Code is the same as section 11 of our Code;such a joinder of plaintiffs as in this case has been held to be bad (5).
(1894) A. C. 494.
(1895) A. C. 661.
(1896) 2 Q. b. 113
(1896) A. C. 450.
I. L. R. 11 Cal. 524; I. L. R. 8.
( 69 )
The Judge has wrongly placed the onus on defendant. Moss v.Wilson (1).
Domhorat, for plaintiffs-respondents.—The cause of action isthe same and the plaintiffs rightly joined in one action. Theobject of the law is to avoid a multiplicity of actions.
Booth v. Brisooe (2) and Oort v. Rowney (3) support the presentform of action.
W. Jayewardene, in reply.—In Smurthwaite v. Hannay, LordBussell considered the cases of Booth v. Briscoe and Gort v. RowneyBooth v. Briscoe is practically over-ruled, and is ncf longer law.
5th April, 1906. Wood Renton J.—
I have had the advantage in this case of a clear and full argumenton both sides, and I propose to give judgment at once. The twoplaintiffs, who are the respondents in this appeal, sued the defendant-appellant for malicious arrest and prosecution, and the learned Com-missioner of Bequests has given judgment in their favour jointly forBs. 105. • It is contended by the appellant that there has been animproper joinder of these two plaintiffs, inasmuch as they have reallyseparate causes of action, which, under sections 11 and 17, C. P. C.,cannot be joined. It seems to me to be clear on the evidence thatthe causes of action involved in the present case are separate. It istrue that the acts out of which the litigation arises are substantiallythe same—both the plaintiffs were charged with causing mischief toa bull, both were arrested and taken into custody together, and bothwere discharged after one and the same inquiry; but these consider-ations do not in my opinion affect the question of the cause of action.A cause of action is a legal wrong or claim. It is a legal entity dis-tinct from the facts out of which it arises. Each of these plaintiffshas a separate right to proceed against the defendant. It is a rightwhich could have been asserted in distinct proceedings .and triedbefore different courts. It might quite well be, that even the factsout of which the cause of action arises might not prove to be identi-cal. It has been held in England in the case of Sadler v. TheGreat Western Railway Co. (4) that claims lor damages of twoor more defendants in respect of their several liability for ajoint act cannot be combined in one action. In that case the alle-gation against defendants was, that by causing their cabs and vanB toassemble for a long period on the highway in front of the appellant’spremises they had caused a nuisance, and, in spite of the fact that itwas the joint act of the two defendants which created the nuisance,
a) 8 N. L. R. 368.(3) 17 Q. B. D. 625.
(2) 2 Q. B. D. 496.(4) (1896) A. C. 450.*
( 70 )
it wjas held by the House of Lords that they could not be joined asdefendants. So far as procedure of this kind is concerned, plaintiffsand defendants stand in the same legal position, and it seems to methat the principles which were laid down by the House of Lords inthe case I have quoted apply a fortiori to the present case, where thereis no ground for suggesting that the joint arrest, as part of the act inquestion, is a necessary element of the cause of action. I may point,out that the case of Sadler v. The Great Western Railway Go. wasdecided under the English rules (see Rules and Orders under theJudicature Acts), which are wider in their terms than section 11,
P.C. containing, as it does, an express limitation of the rightof joinder in cases in which the cause of action is the same. I do notthink that Booth v. Briscoe (1), even if it is still law in England, canbe followed here, regard being had to the words " the same cause ofaction ” in section 11, C.P.C. Mr. Dornhorst called my attention tosection 36. C.P.C., which permits joinder of several causes of actionby plaintiffs who are “ jointly interested ” in a cause of action againstthe same defendant. I can only say that I do not think that thereis any joint interest in the two plaintiffs in the present case. I set asidethe judgment appealed against, with the usual consequences. Itwill still be open to either plaintiff or both, if they are so advised, to.bring separate actions in respect of the alleged injury for which thatamount is claimed. At least there is nothing in my present judg-ment to prevent them from doing so. In regard to the merits. Ishall of course say nothing here or now, except to call the attentionof the learned Commissioner of Requests to some of the recent deci-sions of this Court, of which the case of Moss v. Wilson (2) is thelatest, and may, I think, be taken as a typical instance as to theburden of proof and the facts which have to be proved by a plaintiffin such cases. I say this only because, a perusal of the judgment whichwas brought to my notice by counsel has left some doubt in my mindas to whether the learned Commissioner was in the possession ofthese authorities.
(1) 2 Q. B. t>. 496.
(2) 8 N. L. R. 368.