( 262 )
October 9.
The District Judge upheld this objection in these terms:—
“ I think this is a fatal objection. All the parties to the jointobligation should have been sued at the same time, though theymay not be liable in proportionate shares."
" Plaintiffs had an opportunity after answer was filed to remedythis defect, but they made no application to add the heirs ofMuttupillai as defendants. I dismiss the suit with costs. See
L. R. 6 Cal 815; 3 C. L. R. 90.”
Plaintiffs appealed.
Wendt, Acting A.-G., for appellants.—It is specially providedthat non-joinder should not defeat an action. Here the jointcontractor is dead, and there is nothing to show' that- she leftany legal representatives besides the defendants. If a plea is tosucceed, there must be an averment as to who should be joined.The Indian case in I. L. R. 6 Cal. 815 relied on by the DistrictJudge does not apply to the present case. Our Code is differentfrom the Indian Code on this point. If the plea of non-joinderof a defendant is to succeed, the names of the parties to be joinedmust be set forth, which the defendants have not done.
Walter Pereira, for respondents.—Although the plea put for-ward is non-joinder of defendants, yet the real objection is that theplaintiffs are not entitled to recover the amount in question fromdefendants only, but from others also, who are not before theCourt. The true issue is whether the contract is a solid one ornot (1 Pothier on Obligations, 196) The defendants have amplyindicated in the answer who should be joined.
Bonser, C.J.—
This is an action, by a husband and wife against the wife’sfather and brother upon a notarial agreement which was madeupon the occasion of a marriage between the plaintiffs. By thatagreement the two defendants, together with the mother of thefemale plaintiff, who is now dead, agreed to build a house for thenewly-married couple to the value of Rs. 750, and in default topay that amount. The plaintiffs allege that no house was built,and they sue the two surviving parties to the agreement fordamages. Various pleas were placed on the record by the defend-ants: that the agreement was prescribed: that the defendants paidthe penalty at the request of the plaintiffs, who preferred themoney to the building of the house; and then, as a last straw, theypleaded that the action could not be maintained because there wasno legal representative of the deceased obligor—the mother—on the record.
( 263 )
The Judge held, in the face of section 17 of the Civil ProcedureCode, that this non-joinder of a person, who for ail we know is notin existence, was fatal, and he dismissed the action. In that, inmy opinion, he was wrong. If the defendants were prejudicedby the non-joinder of a contracting party, they should state whothat party is, so that the plaintiff may have an opportunity ofamending his plaint.
It seems to me that this action must go back to have the issuestried.
The only issues to be tried are—first, as to the nature of theobligation, whether it is a solid obligation or not; and secondly,whether the plea of payment could be supported.
The respondents will pay the appellants* costs, because if thejudge went wrong it is because they led him astray.
♦ —
October 9.
Bosses, C.J.