FERNANDO et al. v. FERNANDO

046-NLR-NLR-V-39-FERNANDO-et-al.-v.-FERNANDO.pdf


Fernando v. Fernando.
145
Present: Hearne J. and Fernando AJ.
FERNANDO et al. v. FERNANDO.
88—D. C. Colombo, 483.
Joinder of causes of action—Misjoinder of parties—Civil Procedure Code,ss. 14 and 36 .
Where two causes of action are joined in one action against twodefendants, in one of which it is claimed that the defendants are jointlyliable and in the other it is claimed that one defendant is solely liable,-—Held, that tt^ere was a ms joinder of parties and causes of action.Kanagasabapathy v. Kanagasabai (25 N. L. R. 173) followed.
London and Lancashire Fire Insurance Co. (18 N. L. R. 15) notfollowed.
Held further, in such a case the Supreme Court may remit the actionto the trial Court for such amendments in the pleadings as may enablethe plaintiffs to regularize the proceedings.
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LAINTIFFS who are the children of the first defendant claimedthat on deed No. 3,004 of February 17, 1885, the first defendant
became entitled to an undivided half share of certain property subjectto a fidei commissum in favour of her children. The first defendantinstituted a partition action for this property in 1911, and decree forsale was entered. At the sale the first defendant purchased a dividedblock for -Rs. 41,600 and having obtained from Court an order of creditfor Rs. 24,870 being half the proceeds of sale realized from the entireproperty, paid into Court the balance sum of Rs. 16,730 and obtained acertificate of title in her favour -for the said block. Plaintiffs claimedthat by reason of these facts the first defendant held 2487/4160 sharesof the said divided block subject to the fidei commissum or alternativelyin trust for the beneficiaries under the deed of 1885.
In the alternative the plaintiffs stated that the first defendantfraudulently concealed from the Court the existence of the fidei com-missum and obtained a decree for sale in the partition action causingdamage to the beneficiaries under the deed of 1885 to the extent ofRs. 24,870. The plaintiffs. claimed this sum as damages • from the firstdefendant, the said sum to be declared subject to, the terms and conditionsset out in the deed of 1885 or alternatively in trust for the beneficiariesunder the said deed.
The plaintiffs further stated that the first defendant fraudulently andcollusively with the second defendant in order to defeat the rights ofthe plaintiffs gifted the said block in 1920 to the second defendant.
The plaintiffs therefore prayed— ••
(i.) For a declaration that the first and 'second defendants hold2487/4160 shares of the said land subject to the terms,conditions, and restrictions set forth in the deed of 1885 or intrust for the beneficiaries referred to in the said deed.
(ii.) In the alternative for a declaration that the sum of Rs. 24,870which represented the half share of the proceeds of sale beheld in trust by the .first defendant subject to the conditions
HEARNE J.—Fernando v. Fernando.
146
set out in the deed of 1885 or in trust for the beneficiaries underthe said deed and that the first defendant be ordered to bringthe said sum into Court within a fixed period.
(iii.) In the. alternative that the first defendant be ordered to pay intoCourt a sum of Rs. 24,870 as damages and that the said sum bedeclared subject to the conditions set forth in the deed of 1885.
The defendants pleaded that there was a misjoinder of parties ahdcauses of action. The learned District Judge held that there was nomisjoinder. The second defendant appealed from that order.
H. V. Perera, K.C. (with him Amarasekera, Weerasooria, and E. B.Wikramanayake), for appellant.—There is a clear misjoinder on the faceof the plaint. The cause of action against the first defendant arisesfrom the sale under the partition decree. The second defendant wasno party to that. The cause of action against the second defendantis his assertion of title to the property. This cause of action does nottouch the first defendant. There is not even a prayer to have the deeddeclared null and void in which case the first defendant might be anecessary party to an action brought for that purpose. , The plajntiffscannot get over the difficulty by merely alleging that the defendantsare both liable on all the causes of action. One must inquire whetherthey are liable in law. Sections 14 and 36 of the Code must be readtogether. Under those sections two persons cannot be joined in oneaction in respect of more than one cause of action, unless the defendantsare jointly liable in respect of each cause of action. See Kanagasabapathyv. Kanagasabai l. The case of The London and Lancashire Fire InsuranceCo. v. P. & O. Co." was wrongly decided. De Sampayo J. dissented andhis dissenting judgment has been subsequently followed. See alsoSivakaminathan v. Anthony3. If there is a misjoinder of parties andcauses of action the action should be dismissed. (Abrahams Singho v.Jayaneris *.)
Hayley, K.C. (with him D. W. Fernando), for plaintiffs, respondents.—The case of The London and Lancashire Fire Insurance Co. is a Full Bench
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decision and is binding on this Court. It is none the less a three-judgedecision although there was a dissenting judgment (Appusingho v.Girigoris ) This decision is made binding in all future cases by section 41of the Courts Ordinance. In any event the case was rightly decided.Otherwise the explanation to section 35 would have no meaning. Causeof action fs not the same as the relief claimed. A plaintiff can claimrelief in the alternative on one cause of action. This point was speciallyreserved for the consideration of three Judges in the Fire Insurance Caseand the decision in that case should be followed.
H. V. Perera, K.C., in reply.
Cut. adv. vult.
September 20, 1937. Hearne J.—
This is an appeal which concerns a question of alleged misjoinder onwhich conflicting views have been expressed by Judges of this Court.I shall state in the first place what appears to me to be the law on the
subject.
( 1923) 25 N. L. R. 173.
( 1914) 18 N. L. R. IS.
5 3 Bol. (N. C. ) 20.
» 3 C.L. W. 51.
« 14 C. i. Rec. 121.
147
HE ARNE J.—Fernando v. Fernando.
Section 14, C. P. C., which deals with the joinder of parties reads-, “Allpersons may be joined as defendants against whoiri the right to anyrelief is alleged to exist, whether jointly, severally, or in the alternativein respect of the same cause of action . . . . There has beenno difference of opinion that the section justifies the joinder of, forinstance, two defendants with a claim for relief in the alternative.
Section 36, C. P. C., deals with- the joinder of causes of action. It-enacts that “ Subject to the rules contained in the last section, theplaintiff may unite in the same action several causes of action againstthe same defendant or the same defendants jointlyIn my
opinion this section, interpreted by itself means that, subject to therules in section 35 as to claims which may be'joined with a suit for therecovery of immovable property, where there are two defendants andtwo causes of action, both defendants must be jointly interested in eachof the two causes of action.
This is the view which was taken in Kanagasabapathy v. Kanagasabai1and in the minority judgment in The London and Lancashire Fire Insur-ance Co. v. P. &r O. Co.'
If section 14 and section 36 are read together, as I think they must,the joint, several, or alternative liability of defendants mentioned insection 14 means a joint, several, or alternative liability in respect of oneor several causes of action, which cause or causes of action are unitedin the same suit against the same defendants jointly ; in other words,while the cause or causes of action must be joint as to all defendants,the relief asked may be joint, several or in the alternative.
The question that has exercised my mind is whether we are boundby the majority decision in The London and Lancashire Fire Insurance■ Co. v. P. & O. Co. (supra) which, according to the report, is designated aPull Bench decision. In Kanagasabapathy v. Kanagasabai (supra) therewere two Judges only who took the same view. It would appearthat the decision in The London and Lancashire Fire Insurance Co. v.P. & O. Co. was not a Full Bench decision. At that time there were fourJudges and “ a judgment of three Judges when four Judges constituteda Full Bench is not a judgment of the Full Bench ” (Jane Nona v.Leo ’). On the other hand even if the decision in The London and Lanca-shire Fire Insurance Co. v. P. & O. Co. is to be regarded merely as atwo-Judge decision “it is not competent for a Bench of two Judge? tooverrule a judgment of two Judges ” (Jane Nona v. Leo.) which is whatthe Judges in Kanagasabapathy v. Kanagasabai (supra) did. In the difficultposition in which we find ourselves, t have decided to follow the two-Judge decision with which I agree.
The plaint in the present case may have been framed very differently.In the form, however, in which it has been framed it is bad for misjoinderon the authority of Kanagasabapathy v. Kanagasabai (supra.) The first causeof action is one on which it is claimed that the first and second defendantsare jointly liable, and the second cause of action is one On which it isclaimed.,that the first defendant is solely liable. It was pointed out byCounsel;for thg appellants that while the averments in paragraphs 3, 4, and1 (1923) 25 N. L. R. 173.2 (1914) 18 N. L. R. 15.
» (1923) 25 N. L. R. 241.
148
HE ARNE J.—The King v. Sayaneris.
5 of the plaint gave rise, as it was claimed, to a cause of action against thefirst defendant alone, the prayer asked for relief against the first and seconddefendants jointly. On the other hand while, in regard to the alternativecause of action, fraud was alleged against the first defendant to whichit was further alleged the second defendant was a party, relief wasclaimed against the first defendant only. I refer to the pleadings onlyfor the purpose of indicating that it is possible that amendments maybe made in them which would enable the action to be brought withinthe rules which regulate the bringing of actions. I follow Sivakaminathan ’v. Anthony ’ in the order which 1 propose.
I would allow the appeal with costs and would remit the case to thetrial Court for the purpose of enabling the plaintiffs to make suchapplication as they are advised to make, I need hardly add that theJudge’s discretion in allowing qr disallowing any proposed amendmentis completely unfettered by this order.
Fernando A.J.—I agree.
Appeal allowed.