050-NLR-NLR-V-28-FERNANDO-v.-PALANIAPPA-CHETTY-et-al.pdf
'( 273 )
Present: Lyall Grant J. and Jayewardene A.J.
FERNANDO u. PALANIAPPA CHETTY et ah
92—D. 0. Kurunegala, 11,093.
Amendment of plaint—New defendants—Cause of action—Joinder of
defendants—Civil Procedure Code, ss. 14 and 93.
In an action instituted by the plaintiff against two persons torecover a sum of money on a promissory note, the present, defendantby means of a false representation made to the plaintiff's proctorshad got the judgment entered against one defendant and waivedthe claim against the other, and had stayed execution proceedingsby a false representation to the effect that the money due on thenote had been paid up.
The plaintiff thereupon instituted the present action against thedefendant to recover damages caused to him by the defendant'sfraudulent conduct in the previous case. After issues had beenframed and the date of trial fixed, the plaintiff moved to amendthe plaint by the inclusion of a claim, based upon their allegednegligence, against his proctors whom he sought to add as defendantsin the case.
Held, that the relief claimed against the defendants arose fromthe same cause of action and that they may be sued together inthe same action.
A
PPEAL from an order of the District Judge of Kurunegala.
The facts appear from the judgment.
Soertsz, for plaintiff, appellant.
Drieberg K.G. (with Hayley and H. V. Perera), for defendant,respondent.
October 4, 1926. Lyall Grant J.—
This is an appeal from an order of the District Court of Kurune-gala refusing toamend aplaint and toadd certainpersons as
defendants.
The original plaint dated October 19, 1925, alleged that on apromissory notedated May 1, 1922, H.Don Jamesand Baron
Perera becameindebtedto PalaniappaChetty ina sum of
Rs. 1,300, that, on December 3, 1924, the note was endorsed forconsideration to the plaintiff by Palaniappa Chetty, the defendant,through his agent, that the plaintiff sued the said H. Don Jamesand Baron Perera in case No. 10,463 of the District Court ofKurunegala, that the saidnote was filedas an exhibit and that
without the plaintiff's knowledge or authorization the defendant
1928.
( 274 )
1986.
LyaixGbant J.
Fernando
v,
Qomie
falsely representing himself to the plaintiff's proctors as theplaintiff's agent, got judgment entered in the plaintiff's favouragainst the said H. Don James only and waived the claim againstBaron Perera. This was said .to have occurred more than a monthbefore the date fixed for trial.
The plaintiff further alleges that without the plaintiff's knowledgethe defendant instituted proceedings for execution of judgmentand falsely purporting to act as the plaintiff's agent, had themstopped and got a minute entered of record that the amount dueon the noite bad been paid and had the note delivered to him.The plaintiff further stated that he had not up to date receivedany portion of the sum for which judgment was entered in his-favour.
He claimed from the defendant the sum due on that judgment,namely, Es. 3,885.
The defendant filed answer alleging that all that had been doneby him including instructions given to the plaintiff's proctors was 'done at the instance of the plaintiff and at his request.
After these answers had been filed, issues framed., and a datefixed for trial, the plaintiff moved .that the case ■ be taken offthetrial roll to enablehim to amendthe plaint-,and toadd
his proctors in the former action, as defendants to this action.This was on March 10, 1926. The case was taken off the trialroll and the plaintiff given time till March 17 to amend theplaint.
The journal entry of March 17, reads as follows : —
"Amended plaint filed. Notice added defendants for April 30."
The amendments in the plaint consisted of adding as defendantstheplaintiff's proctorsin the previousease,andaddingthe
following paragraph: —
" The added defendants should not have taken the steps de-scribed in paragraphs 4 and 6hereto, without definite
instructions from the plaintiff. In doing so they haveacted with a want of such care as they ought to exercise,and are guiltyof negligence wherebytheplaintiffhas-
suffered damages."
Paragraph 4 i-efers to having judgment entered against H. DonJames only, and paragraph 6 to the original defendant's actionin regard to stopping execution proceedings; but paragraph 6 doesnot directly allege any act to have been done by the proposedadded defendants.
The claim against the original defendant is- altered by theaddition of a claim against the added, defendants^ and th© prayer
( 275 )
of the plaint is that the defendant and added defendants be♦condemned to pay jointly and severally the amount due on thepromissory note.
The basis of the claim is set forth in paragraph 8, which reads asfollows: —
“ The plaintiff states that up to date he has not received thesum for which the judgment was entered in his favour orany portion thereof. If the defendant or the addeddefendant recovered the said sum, neither he nor theyhave handed it over to the plaintiff. If they did notrecover, the defendant by his fraudulent action, and theadded defendants by their want of care, have causeddamage to the plaintiff in the sum aforesaid, namely,Rs. 1,885/’
Notice was issued and summons served tto the added defendants.
The journal entry for April 30 reads as follows: —
Summons served on added defendants. 2nd and 3rd present.
Notice to show cause. Inquiry 14th May/’
The entry of May 11, reads as follows: —
Mr. Markus, for proposed added defendants, files proxy andstatement of objections of the proposed added defendants."
On May 14, parties appeared and two questions were argued: —
Whether the amendment should be admitted.
Whether the proposed defendants should be added.
On May 17, the learned District Judge made his order, up-holding theobjectionthat the amendmentwas irregular andthat
the partiesand thecause of action hadbeen misjoined.The
District Judge allowed the plaintiff to withdraw the originalplaint and proceed against the original defendant and to institutea new action and proceed against the added defendants for damages.Against this order the plaintiff has appealed.
The first objection taken to .the District Judge’s order was thatlie had on March 17, allowed the amendment of the plaint andthat lie could not therefore disallow it.
It i* difficult to discover from a perusal of the journal entrieswhat the effect of the various orders was intended to be. Onthe whole it appears to me that the District Judge did not regardhimself ashaving amended the plaint oras having addednew
defendants;and thatthe argument of May14 was for the purpose
of enabling him to make up his mind whether he would exercisehis powers under section 93 o-I the Civil Procedure Code to amendthe- plaint, and, under section 18 of the Civil Prosedure Code, toadd the names of the proctors as added defendants.
198*.
LtaiiX*
Gbant J.
Fernando
v.
Oomie
1926.
LyauGrant J.
Fernando
v.
Oomis
( '276 )
In his order, however, the reason given by the District Judgefor refusing to allow the proceedings to be amended was that theamendments in the plaint were not made by the Court but by theplaintiff and that the requirements of section 93 of the CivilProcedure Code were not complied with.
So far as 1 can see, however, the only requirements of section93 of the Civil Procedure Code, which were not complied withrelate to acts which have to be performed by the DistrictJudge.
Having1 disallowed the amendment the District Judge refusedto add the proposed defendants. This order necessarily followedhis refusal to alkntf' the amendment.
The reasons given for the order cannot stand, but the importantquestion is whether the order itself is substantially a proper one.Section 14 allows all persons to be joined as defendants againstwhom the right to relief is alleged to exist, whether jointly or severallyor in the alterative in respect of the same cause of action.
The claim against the defendants in the amended plaint is jointand several. It is based on an allegation that by their combinedaction they caused damage to the plaintiff. But the difficultquestion arises whether the right to relief arises in respect of thesame cause of action.
Cause of action M is defined in sectioh 5 as “ the wrong tor theprevention or redress of which an action may be brought/7 andincludes “ the denial of a right, the refusal to fulfil an obligation,the neglect to perform a duty, and the infliction of an affirmativeinjury.
In order to decide whether or not the same cause of action lies-against both defendants, it is necessary to examine closely whatthe injury was of which complaint was made.'
The first i'njurv complained of was having judgment enteredagainst H. Don Jamc-s only. This could noit have been done bythe defendant without the co-operation of the added defendants,and the same presumably applies to the transactions in regard tothe execution proceedings.
The injury complained of was the result of the combined actionof all the defendants.
It seems to me clear that such a state of affairs implies the jointinfliction of an affirmative injury, and accordingly one cause ofaction.
It has been argued that the case against the first defendantrests upon fraud, and the case against the added defendantsmerely on negl:gence; but I do not think that this distinctionbetween the motives of the parties has the result of differentiating
( 277 )
causes of action. Whatever the motives may have been, the 1926«,injury inflicted is one and the same. It is not the case of separate Lyaixand unconnected acts, each of which might give rise to a ’ claim Graw® J~dn tort, but it is the case of one act done to the prejudice of the Fernanda*.plaintiff by the defendants in combination..
1JOmnia
This is the principle underlying the decision in the case of A (thenSpence <£* Co. v. (1) The Ceylon Wharfage Co. Ltd., (2) The BibbySteamship Co. LtdA
In that case Brown A.J. said: —
** In the case of a transaction the inception of which was originallya contract out of which arises the same relief, that reliefmight be simultaneously sought against two personsalbeit if these had been separate actions, the processwould have been different in the two actions.'’
That decision is in conformity. with decision in The Hondurasintcr-Oceanic Railway Co. v. Lefevre and Tucker,2 and in Frau-nenberg v. The Great Horseless Carriage Co.3
This is not a case where the only connection between the twocauses of action against the defendants iff that the measure ofrelief granted against one may have to be ascertained by the reliefgranted against the other, and it is distinguishable on that groundfrom the case of Greenwood v. Greenwood and ArmitageA
It seems to me that the case against all the defendants can hemost conveniently tried in one action. The order of the District;1Judge will be set aside and the case remitted to him with directions-to add the proctors as defendants and to amend paragraph 6 ofwthe plaint so as to raise* a clear issue against them under thatparagraph.
In paragraph 0 words should be inserted to show that the acts •there complained of were done by the added defendants.
The plaintiff is entitled to the costs of this appeal, and to the cost;of the proceedings of May 14 of the District Court of Kurunegala.
Jayewardexk A.I.—I agree.
Appeal allozoed.
*'(1900) 1 Q. B. Law Rep. 604.
* (1908) Law Times Rep,, Vol. C.t *2k ew 'Series, 08.
1 (1900) 4 N. L. R. 203.
4 (1877) L. R. 2 Exchequer Div.301.