– ItatnenChetty V.Mackioood,
(. rs )I think this is too narrow a view to take of section 14 of the CivilProcedure Code. The cause of action here is the Bame, both againstthe defendant company and against the proprietors. It arises on aloan, and the cause of action is the oreach of the obligation to returnthe money said to be advanced. It may be held that the partyliable is the defendant company. It may be held that the pro-prietors alone are liable. But the cause of action is the same. Itis undoubted that both the. company and the proprietors could havebeen joined originally under section 14. I think that, section18 must be construed as enabling an addition to. be made of anyparty who might, for the purpose of determining the cause of action,have been originally joined under section 14. See the judgmentof Grantham J. in Massey v. Heynes.1 That, however, does notdispose of all the difficulties in the case.
It appears that the co-proprietors in this case are extremelynumerous. The defendant company, indeed, do not know who theyare. They know the proprietors entitled to one-third orf the estate,but they are unable to state the proprietors entitled to the remainingtwo-thirds. With regard to those proprietors, they correspondin the case of one-third with a firm of solicitors in London, andwith regard to the other one-third, they correspond with a ladynamed Mrs. Corner.
The appellant seeks to join both this firm of solicitors m Londonand Mrs. Comer. But this cannot be allowed. Neither Mrs.Corner nor * this firm of solicitors are proprietors. Some of theproprietors are thus unknown, and the question is how is justice tobe done in the matter. 1 express no sort of opinion, as to whetherthere is any substance whatever in the claim. It would, however,be a most unfortunate result if it were not possible to try claimsarising against estates in this country because some of the personsentitled to shares in the estates could not be identified. It wouldalso be most unfortunate if it were necessary in such a case to serveall these proprietors personally outside the jurisdiction. Section25 of the Civil Procedure Code was considered in this connectionwhen the question arose whether it may not be possiblbe to serve thedefendant company on behalf of at least the known proprietors,under paragraph (c) of that section, but Mr. Hayley points out thatthat section only applies to persons carrying on trade or business forami in the name of the parties not resident. Although the companywhom he represents carries on business for the proprietors, itdoes not do so in their name. There is, however, another sectionwhich might, to some extent, meet the difficulty, and that is section65, which declares that where there is an action relating to anybusiness or work against a person who does not reside within thelocal limits of the jurisdiction of the Court, service on any manager
1 (1888) 21 Q. B. D. on p. 336. .
RamenChetty v.Maektoood,Lid.
BarnettChatty v.Mack wood,Ltd.
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or agent who at the time of service personally carries on businessor work "for such person within such limits shall be deemed goodservice.’
It is not necessary for us to decide in this matter whether underthat section a superintendent might be served with notice of anyprocess against the known proprietors of his estate, because itappears to us that there is another solution of the matter which Iwill proceed to explain.
The difficulty in the case is that there is a very numerous bodyof proprietors, some of whom aref" altogether unknown. Now, section16 of our Code provides that where. there are numerous partieshaving a common interest in defending an action, , one or more ofsuch parties may, with the permission, of the Court, be sued on behalfof all the parties so interested. That section is • taken from theEnglish Rules of Court, the corresponding rule there being OrderXVI., Rule 9. Now it is quite clear under the English rule that theapplication for the appointment of certain persons to sue or to be suedin a representative capacity need not proceed 'from those persons•themselves. It may be made by persons seeking to sue them, andeven in the face of the opposition of a person sought to be made repre-sentative. See Wood v. McCarthy 1. Similarly, it does not appearto be necessary in an application under that rule to specify by nameall the persons to be represented. It would appear to be sufficientto describe them generally, and leave them if necessary, to besubsequently ascertained. I see no difficulty under that section in•an action being launched against certain persons as representing anumerous body of other persons who are not at the time ascertained,but who are ascertainable. A difficulty arises, however, in thefact that certain words have been added to our own section whichdo not appear in the English rule. These additional words seemto contemplate only cases in which persons themselves apply tosue or defend in a representative capacity. Are we to construethese additional words in which only these cases are provided foras limiting the first part of the section to these cases ? I do notthink so. I think that all that the situation shows is that thedraftsman .of the section had not fully thought ^out all the casesto which it- applies. In the cases he mentions it is provided thatnotice of the action shall be given to all the parties interestedeither by personal service, or if -from the number, of parties or anyother cause such service is not reasonably practicable, then byadvertisement. I think, in the first place, we should authorizesuch of the resident proprietors as the plaintiff nominates to besued as* representing themselves and the other co-proprietors, andthat, although the second part of the section does not apply in thepresent case, we should take the same equitable course as is there
1 (1893) 1 Q. B. D. 77S.
( 77 )
indicated, and should direct that notice should be given .to .all theproprietors by public advertisement in the “ Times of Ceylon”and the *'* Observer.” The result is, therefore/ that the appealmust be allowed.,l j
In my opinion, we should set aside the order,..and we should sendthe case back to allow the plaintiff to' make: application for thejoinder of such of the proprietors as he may nominate, and forleave to sue them as representing themselves and the other co-proprietors under section IB, without prejudice, of course, to anyopposition which these gentlemen may choose to make in the Courtbelow; and at the same time an opportunity should be given toallow the plaintiff to make any application he may think fit for theamendment of- his plaint. As I have before observed, there is nooccasion for us to give any decision on the question as to whetherMr. Champion Jones, the present superintendent of the estate,can be served with notice on behalf of the proprietors.
1 may add that, even if we were not satisfied that the provisionsof the Code cited authorize the solution we have adopted, weshould have had no hesitation in taking the same course underour inherent power to make such orders as may be. necessary forthe ends of justice referred to in section 889 of the Code. SeeOrdinance No. 42 of 1891, section 4.
In view of the terms of the – .order I have proposed, and in viewof the fact that the appellant was aware of existence of the pro-prietors, and ought to have considered the question of an alternativesuit at the beginning, I think that the proper order for costs isthat costs both here and below should be boosts in the cause.
Ennis J.—I agree.
Set aside.
JtamenGhetty v,Mackwood,