060-NLR-NLR-V-77-H.-WERAGAMA-and-another-Appellants-and-S.-N.-K.-G.-BANDARA-and-another-Respon.pdf
Weragama v. Bandara
289
1971 Present: Samerawickrame, J., and Thamotheram, J.
H. WERAGAMA and another, Appellants, and S. N. K. G.BANDARA and another, Respondents
S. C. 88/67 (F) —D. C. Ratnapura, 4674
Civil Procedure Code—Misjoinder of plaintiffs and causes of action—Scope of Sections 17 and 36 (1)—Issues—Power of Court togrant relief on issues not framed at the stage of trial—Limitationsthereon.
Buddhist ecclesiastical law—Maha Saman Dewale of Ratnapura—Claimto office of Maha Kapurala—Absence of proof of such office—Whether the Court can then declare the claimant to. be a Kapuralawithout framing relevant issues.
Where A has a cause of action against two defendants and B has aseparate cause of action against the same two defendants, theycannot, under our law, unite them in one action on the grounds thatboth causes of action arise from the same acts or series of acts orthat in determining them the. same question of law or fact arises.
The first and second plaintiffs claimed to be declared thehereditary Maha Kapurala and Kapurala respectively of the EtuiKattale department of the Maha Saman Dewale at Ratnapura. Theyaverred that their rights to work at the Dewale were deniedby the first and second defendants. The first defendant was theBasnayake Nilame of the Pita Kattale division of the same Dewale.
Held, that even a concerted attempt by the defendants acting incollusion to oust the plaintiffs as alleged in the plaint would involvea denial of the respective rights of each plaintiff by the twodefendants and would give rise to a separate cause of action infavour of each plaintiff against both defendants. There was therefore,according to Section 17 of the Civil Procedure Code, a misjoinderof plaintiffs and causes of action. It is, however, clear law that anaction will not be dismissed on the ground of such a misjoinder butthat one party plaintiff will be permitted to proceed with his claim.Admittedly, the claim of the second plaintiff could be struck out.
In regard to the first plaintiff, although he sought a declarationthat he was the Maha Kapurala of the Maha Saman Dewale, thetrial Judge held that it had not been proved that there was anoffice of Maha Kapurala of the Dewale. Nevertheless he answeredissues framed relating to the first plaintiff’s claim to be MahaKapurala as though they related to a claim to be Kapurala andgranted him a declaration that he was a Kapurala of the Dewale.
Held, that the trial Judge erred in granting the first plaintiffrelief not prayed for and not claimed in the action by him and thaton his finding that there was no office of Maha Kapurala in theSaman Dewale at Ratnapura, he should have dismissed the firstplaintiff’s action.
.ApPEAL from a judgment of the District Court, Ratnapura-
H. W. Jayewardene, Q.C., with H. Wanigatunga, L. C.Seneviratne and G. H. S. Samaraweera, for the 1st substituted-defendant-appeUant.
H. Wanigatunga, with H. L. K. Karawita, for the 2nd defendant-appellant.
G. Mendis, with Miss A. P. Abeyratne, Asoka de Z.Gunawardena and G. Dayasiri, for the plaintiffs-respondents.
Cur. adv. vult.uucvii—18
!•—A 09770—8,000 (74/00)
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SAMERAWICKBAME, J.—Weragama v. Bandara
March 6, 1971. Samerawickrame. J.—
Learned counsel for the defendants-appellants submitted, thatthere was in this action a misjoinder of plaintiffs and causes ofaction. The plea of misjoinder was taken in the answer and anissue was framed on it. In the plaint the plaintiffs stated that theMaha Saman Dewale situated at Ratnapura was organised toconsist of two divisions or departments called the Etui Kattaleand the Pita Kattale. The Etui Kattale had as its head the MahaKapurala and the Pita Kattale had as its head the BasnayakaNilame. The first defendant as Basnayaka Nilame could insist onthe due performance of religious rites and observances but couldnot interfere in the appointment, dismissal or duties of theofficers of the Etui Kattale. The plaint set out that the firstplaintiff held the hereditary office of Maha Kapurala and thesecond plaintiff held the hereditary office of Kapurala. The plaintthen set out the grounds of complaint which the plaintiffs hadand, inter alia, stated in paragraphs 15, 17 and 18 as follows : —
“ 15. On or about the 9th day of October 1961 the firstdefendant acting in collusion with the second defendantwrongfully and unlawfully prevented the first plaintiff fromcarrying out his duties and functions as Maha Kapuralawithin the sanctum of the deity, in violation of the customsof the Dewale.
The first defendant now wrongfully claims for himselfthe right to appoint and dismiss officers of the Etui Kattaleand Kapuralas in particular and has threatened to dismissthe second plaintiff from his hereditary office of Kapurala.
The plaintiffs have good reason to believe that the firstand second defendants are acting in collusion to oust thetwo hereditary Kapuralas from the Dewale and to place theEtui Kattale of the Dewale in the charge of the seconddefendant under the first defendant. ”
It prayed for a declaration that the first and second plaintiffsare Maha Kapurala and Kapurala respectively of the MahaSaman Dewale and that the plaintiffs are entitled to performrites and observances belonging to the Etui Kattale of the saiddewale, and for a permanent injunction restraining thedefendants from preventing the plaintiffs from performingthe customary rites and ceremonies at the said dewale andinterfering in the affairs of the Etui Kattale or sanctum of thesaid dewale.
It appears to me that the grounds of complaint set out in theplaint touching each of the plaintiffs involve a denial of therights of the first plaintiff as holder of the office of Maha
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Kapurala and a challenge to and a threatened denial of the rightsof the second plaintiff as holder of the office of Kapurala. Evena concerted attempt by the defendants acting in collusion to oustthe plaintiffs as alleged in paragraph 18 of the plaint wouldinvolve a denial of the respective rights of each plaintiff by thetwo defendants and would give rise to a separate cause of actionin favour of each plaintiff against both defendants.
Learned counsel for the plaintiffs-respondents submitted thatthe interests of the first plaintiff and the second plaintiff areidentical in that both were concerned in getting a declarationthat the offices of Maha Kapurala and Kapurala were hereditary,and that the defendants had no right to make appointments to thesaid offices or to dismiss the holders of the said offices. The firstdefendant's claim to appoint and dismiss the holders of the officesof Maha Kapurala and Kapurala was undoubtedly a denial ofthe rights of the plaintiffs. It appears to me however that thatclaim amounted to both a denial of the rights of the first plaintiffand a denial of the rights of the second plaintiff and gave riseto separate causes of action in favour of each of them. Theplaintiffs have alleged further acts in respect of each of thosecauses of action, namely, that on 9th October, 1961, the defendantswrongfully and unlawfully prevented the first plaintiff fromcarrying out the duties of the Maha Kapurala and that the firstdefendant threatened to dismiss the second plaintiff from theoffice of Kapurala.
~ Where A has a cause of action against two defendants and Bhas a separate cause of action against the same two defendantsthey cannot, under our law, unite them in one action on thegrounds that both causes of action arise from the same acts orseries of acts or that in determining them the same questionof law or fact arises. Our Civil Procedure Code contains noprovision corresponding to Order 1 rule 1 of the Indian Actwhich reads: —
“ All persons may be joined in one suit as plaintiffs inwhom any right to relief in respect of or arising out of thesame act or transaction or series of acts or transactionsis alleged to exist, whether jointly, severally or in thealternative, where if such persons brought separate suits,any common question of law or fact would arise.”
On the contrary, Section 17 of the Civil Procedure Codeprovides : —
“Nothing in this Ordinance shall be deemed to enableplaintiffs to join in respect of distinct causes of action.”
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In Don Simon Appuhami v. Marthelis Rosa1 two persons whowere arrested and charged together with the same offence in thesame case and were acquitted, sued in one action for damages formalicious arrest and malicious prosecution. It was held thatthe cause of action accruing to each was separate and distinctand that the two causes of action should not have beencombined and that the suit was bad for misjoinder of causes ofaction. Under the Indian Civil Procedure Code of 1882, thematerial provisions of which were almost identical with theprovisions of our Civil Procedure Code it has been held thatone wrongful act by a defendant or defendants which injuredmore than one person gave rise to distinct causes of action whichmay not be joined in one action. The editor and proprietor of anewspaper published articles which referred to the “ CalcuttaPolice ” without naming individuals. Six members of theCalcutta Police Force jointly sued for damages for libelalleging that the articles were directed against them. It washeld that injury may have been caused by one act of collectivelibel to several individuals but the causes of action of the personsinjured would none the less remain separate and distinct—videAldridge v. Barrow 2. Where A and B were assaulted by C at aninterview at C’s house and jointly sued for damages for assault,it was held that the assault on A and that on B constituted twodistinct causes of action and the suit was therefore bad formisjoinder—vide Varajlal v. Ramdat‘. Where several trustees ofa temple were removed from the office of trustees by a resolutionof the District Temple Committee and filed a suit for a declarationthat their removal was without just cause it was held that thedismissal of each trustee gave rise to a distinct cause of actionand that the suit was bad for misjoinder—vide Ramanuja v.Devanayaka
The second part of the first paragraph of s. 36 (1) of the CivilProcedure Code is relevant and reads : —
“ and any plaintiffs having causes of action in which theyare jointly interested against the same defendant ordefendants may unite such causes of action in the sameaction.”
This must be read with the provision in s. 17 which I have setout which states that nothing in the Code should be deemedto enable plaintiffs to join in respect of distinct causes of action.It is clear that a cause of action in favour of one plaintiff cannotbe united with a separate cause of action in favour of anotherplaintiff. Both plaintiffs must be jointly interested in eachcause of action. In my view the term “ interested ” in s. 36 (1)
9 N.L.R. 68.
34 Cal. 662.
(1922) 26 Bom. 259.(1885) 8 Madras 361.
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does not mean having an interest from affection, curiosity,novelty or the like but having an interest in the sense of havinga pecuniary or other claim or legal rights or liabilities that maybe affected. It does not appear to me that the 2nd plaintiff isinterested in that sense in the cause of action in favour of the1st plaintiff nor that the 1st plaintiff is interested in the causeof action in favour of the 2nd plaintiff.
I therefore hold that there is a misjoinder of plaintiffs andcauses of actions. It is now clear law that an action will not bedismissed on the ground of such a misjoinder but that one partyplaintiff will be permitted to proceed with his claim. Learnedcounsel for the appellants submitted that the action was reallythat of the first plaintiff and that the second plaintiff had at themost a quia timet action which was filed while he still held theoffice of Kapurala. It is doubtful whether, in any event, anycause of action had arisen. Learned counsel for the respondentswhile contending that there was no misjoinder agreed that inthe event of the Court holding that there was such misjoinder,it was the claim of the second plaintiff that should be struckout. I accordingly make order striking out the claim of thesecond plaintiff.
The plaint averred that the Maha Kapurala was the Head ofthe Etui Kattale and that by custom the office of Maha Kapuralawas in the family of the first plaintiff and the first plaintiff wasthe holder of the office. The relief prayed for was a declarationthat the first plaintiff was the Maha Kapurala of the Maha Saman. Dewale and for a permanent injunction restraining the defendantsfrom preventing the plaintiff from performing the customary ritesand ceremonies at the said dewale and from interfering in theaffairs of the Etui Kattale. In evidence the first plaintiff said thatthe sole responsibility of the dewale was with the Maha Kapurala.He has the custody of all the articles in the Hadunkudama,Madamale and Udamale. He supervises the work of the otherofficers of the Etui Kattale and has the right to supervise eventhe work of the Kapuralas. He alone may enter the Udamale.The other Kapurala may only with his permission go beyond theMadamale. As Kapu Nayaka of the Saman Dewale he has theright to appoint the Kapuwa at Sri Pada. He asked that he bedeclared entitled to the Maha Kapuralaship of the dewale.When questioned in cross-examination, he said that the MahaKapuralaship is a distinct office from that of kapurala.
The learned District Judge held that it had not been provedthat there is an office of Maha Kapurala in this dewale. On thatfinding the first plaintiff’s claim failed. The learned DistrictJudge however answered issues framed relating to the first
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plaintiff’s claim to be Maha Kapurala as though they related toa claim to be kapurala and granted him a declaration that heis a kapurala of the Maha Saman Dewale. Learned counsel forthe appellants submitted that the learned District Judge erredin granting a declaration that was neither prayed for in theplaint nor claimed in the action.
In written submissions made to us after the argument wasover learned counsel for the respondents made the point thatit was open to the District Judge to frame an issue at any stage.Up to the end of the trial the claim of the first plaintiff was tobe declared the Maha Kapurala of the dewale. He said that fromthe 19th of October, 1961, he had been forcibly prevented fromworking at the dewale by the first defendant. The trial wasconcluded on 3rd January, 1966, and judgment was deliveredabout an year later. By the time the District Judge came toframe an issue as to the right of the first plaintiff to the officeof kapuralh, a claim by him to that office would have been barredby prescription. A Court may not allow a plaintiff to make anamendment to the plaint which would relate back to the dateof the original plaint if that will prejudice a plea of prescriptionwhich the defendant has- In the same way, in my view, a Courtmay not raise an issue as to a matter not raised in the plaintwhich might prejudice a plea of prescription. It appears to metherefore that the District Court could not, at the stage of judg-ment, have raised ex mero motu, the issue as to the right of thefirst plaintiff to the office of kapurala not claimed in the plaintwithout hearing what the defendants had to urge against theraising of that issue on the ground of prejudice to a plea ofprescription. I
I am also not satisfied that all matters pertinent to a claimby the first plaintiff to the office of kapurala were before theCourt to the same extent as they would have been if the claimhad been made in the plaint and was in controversy in theaction. To meet the case that was put forward by the firstplaintiff it was sufficient for the defendants to show that therewas no office of Maha Kapurala in this dewale. The defendantspleaded certain matters to show that the first plaintiff was notqualified to be a kapurala at all but this was with reference tohis claim to be Maha Kapurala. If the first plaintiff’s claimwas not to the office of Maha kapurala but to that of kapuralait may have been possible for the defendants to aver and esta-blish that under certain circumstances or conditions a personwho had a valid hereditary claim to the office of kapurala wasdisentitled to hold that office and to be recognized and accepted
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by the Basnayake Nilame and that such circumstances or con-ditions existed in the case of the first plaintiff. There was cross-examination of the first plaintiff as to his conduct when he wasmanager at Sri Pada. If the defendants had an opportunity toaver, raise issues and lead evidence of circumstances and/orconditions disentitling the first plaintiff from holding the officeof kapurala there may have been further evidence in regard tothis and other matters may have been raised. In the way thatthe trial proceeded, no occasion arose for the defendants to putforward the position that there were circumstances and/orconditions which would disentitle a person with a valid here-ditary claim to the office of kapurala from holding it and/or beingrecognized and accepted by the Basnayake Nilame. In the actionthe first plaintiff claimed to hold the office of Maha Kapuralawhich he said was supreme in regard to the Etui Kattale andwas not inferior to the office of Basnayake Nilame. The secondplaintiff did claim the office of kapurala but it would appearthat the defendants recognized him as a person both suitableand qualified to hold that office. The dispute, if any, betweenthe second plaintiff and the defendants turned upon his heredi-tary right to that office in view of the claim of the first defendantto appoint and dismiss kapuralas.
The learned District Judge did not in fact frame any freshissues. Had he addressed his mind to the question of raisingissues at the stage of judgment, it would have been apparentto him that the defendants had to be given an opportunity ofbeing heard and of raising matters arising out of the issues thatwere to be raised.
Learned counsel for the respondents relied on the case ofJayawickrame v. Amarasuriya.1 In that case the plaintiff soughtto enforce a promise and agreement by the defendant to paya sum of Rs. 150,000 in five annual instalments of Rs. 30,000each. She alleged that there was a trust binding on the defendantin her favour and that she had threatened to file action and thatan agreement had been arrived at on the basis that the plaintiffshould refrain from instituting the proposed action and shouldnot assert title to any share of certain properties and that thedefendants should, in consideration, pay her a sum of Rs. 150.000in five yearly instalments. She alleged that the defendant had infact paid a sum of Rs. 24,500 in pursuance of the agreement. Thedefendant pleaded that payments had been made by him out ofgenerosity. The learned District Judge in that action held thatthere was no enforceable trust in favour of the plaintiff andthat she had accordingly failed to prove the compromise reliedon by her. He held however that the payments made by the
1 (1918) 20 N.L.R. 289.
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defendant were not made out of generosity but that the defend-ant had done so in pursuance of a moral obligation arisingfrom an oral direction given to him by his deceased father tolook after the plaintiff which the plaintiff, bona fide, thoughwrongly claimed had given rise to a trust. In order to dischargethat moral obligation he had agreed to pay a sum of Rs. 150,000in instalments within five years. The learned District Judgeheld that the plaintiff had failed to prove the justa causa pleadedby her and that the moral obligation did not constitute anadequate justa causa debendi for the pact to pay Rs. 150,000.The Privy Council held that under the Roman Dutch Law, apromise made in pursuance of a moral obligation was enforce-able and that there was a justa causa debendi. They added, “ Ifat the trial, which did not take place before a jury, the learnedDistrict Judge, who had full control over the record, had amen-ded the issue so as to suit the facts proved, he should, in theirLordships’ opinion, have given a decree in favour of the plain-tiffs for the sum sued for. He did not do so. He, on the contrary,seized upon the word ‘ trust ’ used in the fifth paragraph ofthe plaint, and having found that no trust existed, decidedagainst the plaintiffs, although they had established before hima good and meritorious cause of action according to the systemof law applicable to the case.” It would be observed that theplaintiff was awarded the relief claimed in the plaint and upona finding arrived at by the District Judge in respect of mattersthat were in controversy at the trial. I am of the view that thiscase is to be distinguished from the case under consideration byme.
I hold that the learned District Judge erred in granting thefirst plaintiff relief not prayed for and not claimed in the actionby him and that on his finding that there was no office of MahaKapurala in the Saman Dewale at Ratnapura, he should havedismissed the first plaintiff’s action.
We heard arguments on the matters which I have dealt withand intimated to counsel that we would inform them if wedesire to hear further arguments on the other points. However,in view of the findings I have arrived at, it is unnecessary to heararguments on other points. I allow the appeal and dismiss thefirst plaintiff’s action. I have already earlier in my judgmentmade order striking out the action of the second plaintiff. Thedefendants-appellants will be entitled to costs of appeal payableby the first and second plaintiffs-respondents and to costs ofthe trial payable by the first plaintiff-respondent.
Thamotheram, J.—I agree.
Appeal allowed.