027-SLLR-SLLR-2005-V-3-HAPUARATCHI-AND-ANOTHER-vs.-DHANAPALA-AND-ANOTHER.pdf
CA
Hapuaratchi and Another vs. Dhanapala and Another
141
HAPUARATCHI AND ANOTHERvs.
DHANAPALA AND ANOTHER
COURT OF APPEALSOMAWANSA, J, (P/CA) ANDWIMALACHANDRA.J.
CALA 186/2004.
DC KANDY 32523/MR.
MARCH 30, 2005.
Civil Procedure Code, sections 17, 22, 36 and 37 – Misjoinder of parties andcauses of action – Objection to be taken when?
The plaintiff-respondent instituted action seeking damages from the 1st and2nd defendants-respondents.
The defendants-petitioners filed a motion and sought the dismissal of theplaint on the basis that the plaintiff-respondent has misjoined cause of actionand defendants.
The trial judge after inquiry rejected the objections on the basis that theobjections are premature and contrary to section 22.
HELD:
The 1 st and 2nd defendant-petitioners have taken up these objectionsof misjoinder of parties at the correct stage and certainly are notpremature, “An objection to non-joinder of parties shall be taken atthe earliest possible opportunity, otherwise such objections will beconsidered to have been waived”
Held further:
The contesting defendants-petitioners have complied with theprovisions in section 22. Rules of Procedure would allow them toreiterate this objection in their answer and thereafter raise issuesbased on those objections and seek dismissal of the action.
There are no compelling reasons to grant leave to appeal against theimpugned order, for there is no prejudice caused to the contestingdefendant-petitioners in that they could re-agitate this matter as thetrial judge has not rejected the objection.
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APPLICATION for leave to appeal, from an order of the District Court of Kandy.Cases referred to :
John Singho vs. Julius Appu – 10 NLR 351
London and Lancashire Fire Insurance Co. vs. P & O Company – 18NLR 15
Dingiri Appuhamy vs. Talakotuwe Pangananda Thero – 67 NLR 89
Waharaka alias Moratota Sobita Thero vs. Amunugama RatnapalaThero 1981 1 NLR 201
Kudhoosvs. Toonor-41 NLR 251
Alden Fernando vs. Lionel Fernando 1995 2 Sri LR 25
Cologan and Another vs. Udeshi 1996 2 Sri LR 220
L P. A. Chitranganie with K. de Mel for defendant-petitioners'.
A. A. de Silva, P. C. with Jayalath Hissella for plaintiff-respondent.
Cur.adv.vult.
July 22, 2005
ANDREW SOMAWANSA, J. (P/CA)t
The plaintiff-respondent instituted action in the District Court of Kandyseeking as damages Rs. 3000,000/- Rs. 2000,000/- and Rs. 2000,000/-from the 1 st and 2nd defendants-respondents respectively.
The plaintiff-respondent has taken up the position that the 1 st and 2nddefendants-petitioners are running a business of conducting courses ofcounseling under the name of Institute of Psychological Studies and the3rd defendant-respondent is a Lecturer in the said Institute, that the plaintiff-respondent joined the said course on 07.07.2002 which was due to end on19.12.2002, that on the payment of fees by the plaintiff-respondent the1 st and 2nd defendants-petitioners entered into an agreement to enroll her
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to the course, that the 1st defendant-petitioner having heard the talescarried by the 3rd defendant-respondent defamed the plaintiff-respondenton the 28th and 29th December, 2002 and on 5th January 2003. The 2nddefendant-petitioner having heard the tales carried by the 3rd defendant-respondent defamed the plaintiff-respondent over the telephone, that the1 st and 2nd defendants-petitioners did not allow the plaintiff-respondent tofollow the said course and that the defendants do not have the properknowledge and qualifications in counseling. In the.premiss, the plaintiff-respondent claimed the aforesaid sums of money as damages from thethree defendants.
Thle 1 st and 2nd defendants-petitioners filed a motion dated 28.10.2003and sought the dismissal of the plaint on the basis that the plaintiff-respondent has misjoined cause of action and defendants. This matterwas inquired into and at the conclusion of the inquiry the learned DistrictJudge by his order dated 14.05.2004 rejected the objections of the 1 st and2nd defendants-petitioners on the basis that the objections taken by the1st and 2nd defendants-petitioners are premature and contrary to theprovisions contained in section 22 of the Civil Procedure Code. The saidsection reads as follows:
“All objections for want of parties, or for joinder of parties who haveno interest in the action, or for misjoinder as co-plaintiffs or co-defendants,shall be taken at the earliest possible opportunity, and in all casesbefore the hearing. And any such objection not so taken shall be deemedto have been waived by the defendant.”
It is to be seen that the 1 st and 2nd defendants-petitioners have takenup these objections for misjoinder of parties at the correct stage andcertainly not premature in terms of provisions contained in section 22 ofthe Civil Procedure Code. In the case of John Sinno vs. JulisAppu{1). Thehead note reads as follows:
"An objection to non-joinder of parties should be taken at the earliestpossible opportunity, otherwise such objections will be considered tohave been waived.”
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Also in the case of London and Lancashire Fire Insurance Co. vs. P.& 0. Company<2) Pereira, J (obiter):
“An objection to an action by a defendant on the ground of misjoinderor non-joinder of parties is not to be taken by way of answer. It shouldbe taken by motion or application at the earliest opportunity.”
Also at 21 Pereira, J observed:
“ Now, it seems to me that an objection on the ground of misjoinderor non-joinder of parties is not a defence to the plaintiffs’ claim to betaken by way of answer. Section 22 of the Civil Procedure Code enactsthat such an objection should be taken at the earliest possibleopportunity, and if it were not so taken, it should be deemed to havebeen waived by the defendants.”
In this respect the provisions contained in sections 36 and 37 of theCivil Procedure Code also become relevant and the said sections readsas follows:
“36. (1) Subject to the rules contained in the last section, the plaintiffmay unite in the same action several causes of action against the samedefendant or the same defendants jointly, and any plaintiffs having causesof action in which they are jointly interested against the same defendantor defendants may unite such causes of action in the same action.
But if it appears to the court that any such cause of action cannot beconveniently tried or disposed of together, the court may, at any timebefore the hearing, of its own motion or on the application of any defendant,in both cases either in the presence of, or upon notice to, the plaintiff, or atany subsequent stage of the action if the parties agree, order separatetrial of any such causes of action to be had, or make such other order asmay be necessary or expedient for the separate disposal thereof.
(2)When causes of action are united, the jurisdiction of the court asregards the action shall depend on the amount or value of the aggregate
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subject-matters at the date of instituting the action, whether or not anorder has been made under the second paragraph of subsection (1)".
37. "Any defendant alleging that the plaintiff has united in the sameaction several causes of action which cannot be conveniently disposed ofin one action, may at any time before the hearing apply to the court for anorder confining the action to such of the causes of action as may beconveniently disposed of in one action.”
Order of Court thereon is contained in section 38 of the Civil ProcedureCode which reads as follows:
“38. (1) If, on the hearing of such application, it appears to the court thatthe causes of action are such as cannot all be conveniently disposed of inone action, the court may order any of such causes of action to be excluded,and may direct the plaint to be amended accordingly, and may make suchorder as to costs as may be just”
In the order of the learned District Judge it is to be seen that she hasmade reference to section 17 of the Civil Procedure Code as well, whichreads as follows:
“No action shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every action deal with the matterin controversy so far as regards the rights and interests of the partiesactually before it.”
In the case of Dingiri Appuhamy vs. Talakolawewe PanganandaThera<3)
Court observed:
“There is no provision in the Civil Procedure Code or any other lawrequiring an action to be dismissed where there is a misjoinder of causesof action. It is therefore, improper for the court to dismiss an action onthe ground of misjoinder of defendants and causes of action withoutgiving an opportunity to the plaintiff to amend his plaint.”
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It was held in that case:
“That there was a misjoinder of defendants and causes of action. Inas much as, under section 17 of the Civil Procedure Code, no actionshould be defeated by reason of misjoinder of parties, the plaintiffsshould be given an opportunity to amend their plaint so that the actionshould proceed against the 1 st defendant only
In Waharaka alias Moratota Sobitha Theravs. Amunugama RatnapalaThero(4) section 17 of the Civil Procedure Code enjoins a Judge not todismiss an action for misjoinder or non-joinder of parties.
Also in Kudhoos vs. Joonoos<5):
A Court is not bound to dismiss an action on the ground of misjoinder ofparties and causes of action. In such a case the Court may on applicationmade in the exercise of its discretion strike out one or more plaintiffs andgive an opportunity for amendment of the pleadings, so as to make theplaint conform to the requirements of section 17 of the Civil ProcedureCode.
In Aldin Fernandovs. Lionel Fernando(6) it was held:
“(1) That provisions of the Civil Procedure Code relating to the joinderof causes of action and parties are rules of procedure and not substantivelaw. Courts should adopt a common sense approach in decidingquestions of misjoinder or non-joinder.”
Section 18 permits Courts on or before the hearing uponapplication of either party to strike out the name of any partyimproperly joined. Section 36 provides that if any cause of actioncannot be conveniently tried, for Court ex mero motu or on theapplication of the defendants with notice to the plaintiff at any timebefore the hearing or on agreement of the parties after thecommencement of the hearing to order separate trials of any causeof action.
It is not open to the defendant to await the framing of issuesand then, without prior notice to the plaintiff frame issues on misjoinderof parties or causes of action.”
CAHapuaratchi and Another vs. Dhanapala and Another] 47
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In the case of Colgart and Anothervs. Udeshi (J) G. P. S. de Silva, CJstated:
“ It is well to remember that a Court should not be fettered by technical
objections on matters of procedure.”
On a consideration of the aforesaid authorities I would disagree with thefinding of the learned District Judge that the objections raised by the 1 stand 2nd defendants-petitioners on the basis of misjoinder of causes ofaction as well as parties are premature, My considered view is that thecontesting defendants-petitioners have raised this objection at the correcttime. Be that as it may, the learned District Judge has not in his ordercompletely rejected the objection taken by the contesting defendants-petitioners but only says they are premature. In the circumstances thecontesting defendants-petitioners have complied with the provisionscontained in section 22 of the Civil Procedure Code. Rules of procedurewould allow them to reiterate this objection in their answer and thereafterraise issues based oh those objections and seek dismissal of the action.In the circumstances my considered view is that there is no compellingreason for this Court to grant leave to appeal against the impugned orderof the learned District Judge, for there is no prejudice caused to thecontesting defendants-petitioners, in that they could reagitate this matter.On the other hand, the plaintiff-respondent is aware of the objections takento the plaint. It is up to him to decide whether to amend the plaint or not inview of the objection taken by the contesting defendants-petitioners to theplaint. Either way he will have to face the consequences.
For the above reasons, I do not intend to interfere with the order of thelearned District Judge and accordingly the application for leave to appealwill stand dismissed. Parties will bear their own costs.
WIMALACHANDRA J . — /agree.
Application dismissed.