082-NLR-NLR-V-01-READ-v.-SAMSUDIN.pdf
( 292 1
1895.July 16.
READ v. SAMSUDIN.
B., Colombo, 8,823.
Actiou by secretary of a voluntary association—Inadmissibility of technicalitiesof law in Courts of Requests—Right of plaintiff to sue—Motion to take,plaint off the fie—Proper mode of dealing with the question of right tosue—Civil Procedure Code, s. 10—Costs.
A voluntary association cannot by agreement between its membersgive any individual the right to sne on their behalf.
Where it is practically impossible for a body of numerous membersto appear as plaintiffs, the Court may make an order under section 16 ofthe Civil Procedure Code, permitting one or more of such members tosue on behalf of the rest.
It is not the duty of a Judge to throw technical difficulties in the wayof administering justice. He ought to remove them out of the wayupon proper terms as to costs and otherwise.
In a Court of Requests all technicalities of law should be avoided.When a plaint, defective in some material respect, has been filed, it isnot necessary to move that it be taken off the file, but it is the duty ofthe Court, of its own accord, or upon its attention being called, to rejectthe plaint or return it to plaintiff for amendment. If the plaint is goodex facie, any objection thereto must be taken by the answer.
Where defendant, a member of a voluntary association, objected at thetrial to the reception of certain rules made* by the association, on theground that such rules were not included in any list of documents filedby the plaintiff,—
Held, that defendant should be deprived of his costs in the Courtbelow.
( 293 )
T
HIS was an appeal preferred by the plaintiff against thedismissal of an action which he had brought in the Conrt of
Requests of Colombo as Honorary Secretary of an institutionknown as the Colombo Library, for the recovery of a certain sumof money said to be due by the defendant, who was one of itsmembers, for monthly subscriptions unpaid, and for the value ofcertain books taken out by him and not returned.
The facts in detail are set forth in the judgment of his Lordshipthe Chief Justice.
Jayawardena, for the appellant,—
The plaintiff has no right to maintain this action as the Honor-ary Secretary of the Colombo Library, such library being amerely voluntary association, and a voluntary association cannoteven by agreement between the members give any individualthe right to sue on behalf of the members. He cited Evans v.Hooper, 11 Q. B. D. 45; Gray v. Pearson, 5 C. L. R., 568;I. L. R. 14 Madras, 362.
Dornhorst, for respondent.—The authorities cited do not applybecause, according to the rules of the library to which the defend-ant subjected himself when he became member, the secretary haspower to sue. The objection, even if valid, iB a purely technicalone, and could be met by amendment.
16th July, 1895. Bonser, O.J.—
In 'his case the plaintiff, describing himself as HonorarySecretary, Colombo Library, sued the defendant to recover certainsubscriptions alleged to be due to the Colombo Library, and thevalue of certain books which were said to have been taken out bythe defendant from the library and never returned.
The defendant, in the first paragraph of his answer, denied theplaintiff’s right to sue.
When the case came on for trial, evidence was given on behalfof the plaintiff in support of the action, and the plaintiff sought toput in a copy of the rules of the library. This was objected to,on the ground that the rules of the library were not included inany list of documents filed by the plaintiff, although they werereferred to in the plaintiff’s statement of claim, and were evidentlyrelied on. That such an objection should have been upheld is tome astounding, especially in a Court of Requests, which is a Courtfrom which all technicalities should be banished.
There was no question of these being the rules of the society.The objection was purely a technical one.
1895.July 10.
Bonsbb, CJ.
( 294 )
1895. Now, I will read what one of the greatest Jndges that everJtUylO. adorned the bench, Sir George Jeesel, Master of the Rolls, saidBouses, OJ. on this subject in the case of Jones v. Chennell, 8 Ch. D, 506.
An objection had been taken there to the admission of certaindepositions, on the ground that the proper notice of intention toread them required by law had not been given. He says : “ That“ notice was not given, but the appellant endeavoured to read the“evidence and tender it in the Court below. It was rejected“ upon the ground of want of notice. It is disputed whether or not“ the counsel for the party desiring to use that evidence did or“ did not ask for an adjournment; but in my opinion the Judge“ below ought to have granted the adjournment as a matter of“ course without being asked for it. It is not the duty of a Judge^“ to throw technical difficulties in the way of the administration ofw justice, but where he sees that he is prevented from receiving“ material or available evidence merely by reason of a technical“ objection, he ought to remove the technical objection out of the“way, upon proper terms as to costs and otherwise. I have“known an objection taken at the trial to the admission of a“ document which everybody knew to be a genuine one ; and I“ have known the Judge say to the person taking the objection,‘I“ * will adjourn the cause, but reserve the costs,’ and thereupon“ the objection has been withdrawn. That I have seen more than“ once, and I cannot help thinking that if the Judge in the Court“ below had offered the adjournment, the other side would have“ allowed the evidence to be read."
Those observations of the late Master of the Rolls ought to beborne in mind by every Judge in this Colony.
The trial went on, and the Commissioner gave judgment for theplaintiff. He overruled the objection taken by the defendant ih'*his answer to the right of the plaintiff to sue, on the ground thatthe objection ought to have been raised by a motion to take theplaint off the file, and that by answering to the merits the defend-ant has practically admitted the sufficiency of the plaintiff’sauthority and of the allegations in the plaint. Now, I mustconfess I cannot understand this. There is no provision in theOrdinance for such a motion as the Commissioner refers to. TheCode makes it the duty of the Court to scrutinize the plaint beforeit is received, to see that it complies with all the requirements ofthe Code, that it is duly stamped, that it discloses a good cause ofaction, Ac.; and if after having carefully examined the plaint theCourt is satisfied that the plaint complies in all respects with therequirements of the law, then the Court is bound to accept the
( 295 )
ft/aint. The Code lends no countenance to any such practice as 1816.that suggested of a motion by defendant to take the plaint off the **9ie-file.Bosses, CJ.
If the plaint is defective in some material points, and thatappears on the face of the plaint, bat by some oversight theCoart has omitted to notice the defect, then the defendant, ondiscovering the defect, may properly call the attention of theCoart to the point, and then it will be the daty of the Coart to actas it oaght to have done in the firBt instance, either to reject theplaint or to retarn it to the plaintiff for amendment. If the plaintis a good one on the face of it, bat the defendant has reason tonrge why the plaintiff is not entitled to sae him, that objectionmast be taken by the answer.
I hope this is the last occasion on which we shall hear of amotion in a Coart of Requests to take a plaint off the file.
In my opinion the objection that plaintiff had no right to saethis defendant was rightly taken by the answer, and ought to havebeen disposed of by the Jndge. Now, the objection taken by thedefendant is this. He says: “Yon (the plaintiff) have no right to“ sae me. I have not injured you, nor is there any contract between“ yon and me under which yon can sae me. I am a member of a“ voluntary association called the Colombo Library, and the per.
“ sons who are injured, if any one is injured by my conduct, are the“ other members of that association, and it is they, and they alone,
“ who can sae me.” I think that is a good objection. No contractwas proved between the defendant and the plaintiff which gave theplaintiff the right to sue this defendant. It was said that therales of the library authorized the secretary to sue, bat in myopinion the cases referred to by Mr. Jayawardena—Evans v.
Hooper (1. Q. B. D. 45); Gray v. Pearson (5 C. L. R., 568)—show that voluntary associations cannot by agreement betweenthe members give any individual the right to sue on behalf of themembers. Therefore I think this objection ought to have beenupheld and the plaintiff’s action dismissed.
The defendant will have the costs of this appeal. But therewill be no costs in the Court below. I deprive the defendant ofhis costs in the Court below, because he insisted on the objectionas to the admissibility of the rules.
I should add that the Code in section 16 makes provision forsuch a case as this, where it is practically impossible for anumerous body of members to be made plaintiffs. The Courtmay make an order permitting one or more of such members tosue on behalf of all parties so interested.