023-NLR-NLR-V-25-JAYAWARDENE-v.-THE-BAPTIST-MISSIONARY-SOCIETY-et-al.pdf
( 97 )
Present: Porter and Schneider JJ.
JAYAWARDENE v. THE BAPTIST MISSIONARYSOCIETY et ah393—D. C. Chilaw, 6,717.
Action against the congregation of a chv/rch—Order under section 16 of theCivil Procedure Code—Representation order—Decree as to costsHow far binding on members of congregation who were not partiesto action ?
The effect of a representation older under section 16 of the CivilProcedure Code is to bind persons who are not parties, but who arerepresented as having a common interest, only in so far as theproperty which is the subject-matter of the aotion is concerned,but is ineffectual to render them liable in costs or damages.
I
N action No. 5,502, D. C. Chilaw, the appellant corporationsued “ the members of the congregation of the Baptist Church
at Madampe ” represented under'section 16 of the Civil ProcedureCode by certain seven persons in respect of the land on which thechapel, used by the congregation for worship, stands, alleging thatthe appellants were the lawful owners thereof, and that the membersof congregation denied their right and refused to quit and restorepossession on notice, and kept wrongful possession to the damage of* the appellants.
By the decree in that action the appellants got judgment againstthe congregation for the premises and for damages and costs.
Under writ issued against the congregation in execution of thedecree for damages and costs, the land in question in this case wasseized, whereupon the plaintiff-respondent, who is a married woman,being the wife of the second defendant, preferred a claim whichwas disallowed.
The plaintiff thereupon instituted this action within fourteen daysfrom the date of the said order disallowing the claim, praying thatthe said land be declared not liable to be sold in execution as beingher property, and that it be released from seizure.
The District Judge gave judgment for plaintiff-respondent asprayed for, holding that though she is a member of the congregation,and as such bound by the decree in so far as it relates to the land andpremises mentioned therein, she is not liable to pay the damagesand costs awarded in the decree. The defendant appealed.
Samarawickreme (with him M. Fonseka), for first defendant,appellant.
H. V. Perera, for plaintiff, respondent.
Cur. adv. vult.
xxv.12(60)29
1923.
( 98 )
1923.
Jayawardenev. ttheBaptistMissionarySociety
June 15, 1923. Schneider J.—
In action No. 5,502 of the District Court of Chilaw, the firstdefendant society as plaintiff obtained a decree against “ themembers of the congregation of the Baptist Church in Madampe ”represented by the second defendant in this action, one Jane Amera-sekera and five others, under a representation order duly made underthe provisions of section 16 of the Civil Procedure Code.
The decree declared the first defendant society entitled to acertain allotment of land on which the Baptist Chapel, the Manse,and schoolroom stand, and directed the “ defendants ” to be ejectedtherefrom, and the first defendant society to be put and placed inpossession thereof. It also directed the “ defendants ” jointly andseverally to pay damages and costs. In execution of the portion ofthe decree for damages and costs, the land in dispute in this actionwas seized and was claimed, but unsuccessfully by the plaintiff whois the respondent in this action. She has brought this action undersection 247, asserting that she is not bound by the portion of thedecree in action No. 5,502 awarding damages and costs, as she wasnot a party in that action* On the facts the District Judge foundthat the plaintiff, respondent, was a member of the congregation ofthe Baptist Church in question, but on the law he upheld her con-tention that she was not bound by the decree. Accordingly, hegave judgment for the plaintiff, and the first defendant society hasappealed.
Mr. Samarawickreme, who appeared for the appellant, confinedhis appeal to the question of law. In support of his contention hecited two decisions of the Courts of England, viz., May v. Newton1and Jenkins v. Davies.2 I am unable to accept either case assupporting his contention that they should be regarded as enunciat-ing a principle which should be adopted in the decision of this appeal.Both of them are administration actions under the English “ Rulesof the Supreme Court, 1883.” They decide that when notice hadbeen served upon a direction of the Court under Order XVI., rule40, or when a representation order under rule 9 of that Order hadbeen obtained, persons interested in the estate, but who were notnamed as parties, are bound by the proceedings. The decision inboth cases obviously rest upon the express provisions of Order XVI.,rule 40, that when notice had been served persons not parties onthe record would be bound as if they had originally been made parties.Such a provision is not to be found in regard to proceedingsconnected with section 16 of our Code. The question raised by thisappeal is whether persons represented under an order obtainedunder section 16 are “ parties ” to the action, so that they are boundby the decree in respect of all matters contained in it. I am, there-fore, unable to regard those cases as of assistance in deciding this1 (1886) 34 L. R. Chan. Div. 347.2 (1891) 64 L. T. NS Chan. Div. 824.
( 99 )
appeal. The same reason nold-s good for not accepting Mr. Samara- 19?3.wickreme’s contention that Jenkins v. Davies {swpra) is authority for Schnetohbholding that the represented persons are before the Court for allpurposes, including that of allotment of costs, and that the decree Joyawardeneas to costs, therefore, binds such parties.v. The
Mr. Samarawickreme also cited the case Aiyangar v: Aiyangar.1 MfssionoryThis case undoubtedly sustains the argument that the decree binds Societythe persons represented, but it is also clear that in that oa^e thedecree was regarded as binding on them only in so far as the propertyor interest was concerned. It was expressly held that an injunctionagainst the “ actual defendants ” -was not binding on the personsrepresented as an injunction was personal in nature. Nor does thecase Sahib Tambi Marakayar v. Hamid Marakayar2 cited by himsustain his contention. On the contrary, it seems to me it is directlyopposed to his contention. For although the actual point fordecision was how far an action against a partnership would bind thepartners, who were not actual parties, it states : " The general ruleof law undoubtedly is, that in suits where one person is allowed torepresent others, as defendant in a representative capacity, anydecree passed can hind those others only with respect to the propertyof those others which he can in law represent, and no personal decreecan be passed against them, although the parties on record eo nominemay be made personally liable. This is the principle applied in suitsagainst a Hindu family as represented by its managing member andin suits to which Order I., rule 8, of the Civil Procedure Code, 1908,is applicable. It has consequently been held that an injunction ina decree in the latter class of cases is not binding on those who werenot actually parties to the record. See Sadagopachari v. Krishna-machari and Srinivasa Aiyangar v. Arayar Srinivasa Aiyangar”
Order I., rule 8, referred to in that passage, corresponds to section16 of our Code and section 30 of the Indian Code of 1882.
Mr. Perera for the respondent cited the “ The Law of Costs ” bySastri and Iyer at page 110. The case Sajedur Raj v. Baidya NathDeb and others3 is referred to in that book. Calcutta Weekly Notesare not available, but the facts of that case are stated in the bookas being that the plaintiffs sued the defendants “ on behalf of them-selves and of forty-two others, thirty-six of whom had intimatedtheir willingness that the suit should be carried on by the plaintiffs.”
The action was for the dismissal of a Mohunt, and to set asidean alienation of property by him. In a note at the bottom ofpage 111, the authors of the book cite from the judgment of Mac-pherson J. in Sejedur Raj v. Baidya Nath Deb (supra), and I take thefollowing from that citation as a commentary which is applicableto section 16 of our Code, and as a commentary with which I amentirely in agreement. “ Persons on whose behalf the suits were
1 (1910) I. L. R. 33 Mad.. 483.3 (1913) I. L. R. 36 Mad. 414.
8 1 0. W. N. 65.
( 100 )
1923. instituted, but who did not themselves join as plaintiffs in the suit,Schneider were not parties to the suit in the sense that they had any voice orJ•control in the conduct of it, or that they could be made liable for costs.
Jayawwdene Possibly the effect of section 30 might be that they would be boundv. The by the decision, but it would not follow from that they were partiesMissionary 1° the suit, and section 32 of the Code distinctly provides that anySociety person on whose behalf a suit is' instituted under section 30 mayapply to the Court to be made a party. That indicates that untilhe is formally joined as a party, he is not a party simply because asuit may have been instituted by another person for their jointbenefit.”
It would accordingly appear that the cases cited support Mr.Perera’s contention that the effect of a. representation order undersection 16 of our Procedure Code is to bind persons who are notparties, but who are represented as having a common interest, onlyin so far as the property which is the subject-matter of the actionis concerned, but is ineffectual to. render them liable in costs ordamages. I would accept this view. Section 16 of our Code followsclosely the language of the Indian Code of 1882, section 30. Itemploys the words “ parties ” and “ party ” as in that Code, whereit means persons and person. In the present Indian Code (Act V. of1908) the word “ parties ” has been replaced by the word “ persons.”The proviso to section 19 of our Code employs the correct term“ persons ” showing clearly that the word “ parties ” in section 16was intended for “ persons.”
The real point raised by this appeal is whether persons representedunder an order under section 16 are parties to the action. I am ofopinion that they are not.
The policy of our Procedure Code is to be found enunciated insection 33 that every “ action shall, as far as practicable, be soframed as to afford ground for a final decision upon the subjects indispute and so as to prevent further litigation.” It is a good generalrule that all persons interested ought to be made parties to anaction, however numerous they may be so as “to enable the Courteffectually and completely to adjudicate upon and settle all thequestions involved in the action’ ’ (section 18). But that general ruleyields to the exigencies of special cases to meet the requirements bywhich section 16 authorizes one or more persons who have a commoninterest with numerous persons with the permission of the Court tosue or be sued “ on behalf of all parties so interested.” And section19 allows any such persons “ to apply to the Court to be made aparty.” It also enacts “ that all parties whose names are so added asdefendants shall be served with a summons in manner hereinaftermentioned, and the proceedings as against them shall be deemedto have begun only on the service of such summons.” The provi-sions and language of section 19 must clearly be regarded as drawinga distinction between a “ person ” on whose behalf an action is
( 101 )
instituted or defended and “ parties ” to an action* It would there-fore follow that a decree in an action constituted under section 16cannot bind the persons who are not parties personally. It cannotbe that the decree is not to bind them at all, for then the provisionsof section 16 would be useless. In what respect does it bind them.It binds them only in so far as their “ common interest" with theactual parties to the act on is concerned, for the parties to the actionrepresent the rest only to that extent. It would lead to somestartling results to take any other view. A person who had a“ common interest ” might never have heard of the action, in spiteof the public advertisement mentioned in section 16, and if he hadheard of the action might have disclaimed any interest in the“ interest ” said to be (C common ” rather than run the risk of anaction. Is it equitable that his personal property should be takenin execution ? Suppose the common interest of such a person bewith theplaintiffs,is it equitable that he and perhaps ahundredotherslike him should be allowed a share in the damages awarded ? Itwas stated at t)xe argument that the congregation of the church inquestion was divided into two factions or parties, one of whichfavoured the first defendant society and the other which deniedand resisted that claim. Should the first defendant society bepermitted to ’evy execution upon the personal property of the verymembers of the congregation who not only did not d spute butfavoured its claim? Then, again, who are the members of thecongregation ? Are they those who were members before the dateof the institution of the action or at the date of the institution, orbetween the date of institution and the date of judgment or duringall those periods ? If those who were members of the congregationbefore the date of the institution are included, the question naturallyarises how far back is one to go ? Will a person who was a memberone or two years before the institution of the action and had ceasedto take any interest in the church be liable to have execution leviedupon his personal property ? An interval of time must needs haveelapsed between the institution of the action and the date of thedecree. Are those who became members in that interval liablepersonally ? A congregation is not an entity. Its componentmembers are constantly changing. The decree would, therefore,be enforceable in respect of costs and damages against groupsconstituted differently as the decree is. regarded as enforceableagainst a group which existed at a particular stage of the action.
One of the cases mentioned at the argument was Walker v. Sur.1In that case the plaintiff sued four defendants on their own behalfand as members of the “ Brotherhood of St. John of God.” WhatKennedy L.J. said in the course of his judgment may be usefullycited here. He observed : " When I consider the nature of a moneycl&'m, I think the case becomes for this purpose reasonably clear,
1 (1914) 2 K. B. D. C, A. 930
1923.
SOHNEIDEB
J.
Jayawardene
v. TheBaptistMissionary
Society
C 102 )
1923.
SCHN£H>SB
J.
Jayawardenev. TheBaptistMissionarySociety
because day by day, if this is a large body, one member is going outand another is coming in. The body is continually changing, andto give a judgment against all the members for debt would be toinclude the case of an incoming member, who would be made liablethough he was not a member at the date of the contract, and in thecase of an outgoing member you would have to take the state ofthings at the date of the judgment. A judgment could not verywell be given against one who had ceased to be a member, and yetthey are all supposed to be those persons who are said to be repre-sented. If this order stands they would, I suppose, be any bodywho at the date—I do not know whether it would be at the date ofthe commencement of the action or of the judgment—is a memberof the sooiety.”
It seems to me that the persons who came forward as plaintiffsor who are sued as defendants must be deemed to have accepteda personal responsibility for costs and damages which may .arise asthe result of the action-
I would for these reasons hold that the order as to the paymentof costs and damages being personal binds only the person who werenamed as party defendants in the action, and I dismiss the appeal,with costs.
Porter J.—I agree.
Appeal dismissed.