032-NLR-NLR-V-39-SUPPIAH-PILLAI–et-al.-v.-RAMANATHAN-et-al.pdf
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Suppiah Pillai v. Ramanathan.
Present: Moseley J. and Fernando A.J.
SUPPIAH PILLAI et al. v. RAMANATHAN et al.
157—D. C. Kandy, 44£36.
Action by plaintiffs in representative character—Common interest—Failure tofollow directions of Court regarding notice—Civil Procedure Code, s. 16.Where plaintiffs, representing a number of persons, sued the defendantsfor the return of money held by the latter for the benefit of the plaintiffsand those whom they represented,—
Held, that the plaintiffs had a common interest in bringing the actionwithin the meaning of section 16 of the Civil Procedure Code.
Where the Court in giving permission to the plaintiffs to sue on behalfof the others directed them to give the required notice under the sectionin two publications,—
Held, that failure to comply with the order was a fatal irregularity.^/^PPEAL from a judgment of the District Judge of Kandy.
H. V. Perera (with him C. E. S. Perera), for defendant, appellants.
N. E. Weerasooria (with him E. B.- Wikremanayake), for plaintiff,
respondents.
1 4 N.L. R. 191.
* 2 T. R. 63.
MOSELEY J.—Suppiah Pillai v. Ramanathan.
91
October 8, 1936. Moseley J.—
This is an appeal against a judgment of the District Court of Kandyin favour of the plaintiffs who, representing a number of claimants, suedthe defendants for the return of money held by the latter for the benefitof the plaintiffs and those whom they represented.
In the plaint the plaintiff applied for the Court’s permission to bringthe action for and on behalf of themselves and a number of other Kanaka-pulles in terms of section 16 of the Civil Procedure Code. The permissionwas granted on a certain condition as to notice, to which I shall referlater.
The appellants inter alia challenge the propriety of the grant ofpermission to the plaintiffs to sue in a representative capacity on theground that there is no community of interest.
No local authority in point has been brought to our notice. It isnecessary, therefore, to seek elsewhere for guidance.
It should be observed that whereas in section 16 of the Civil ProcedureCode the words “ common interest ” are employed, in the correspondingrule in the English and Indian Procedure, the expression is “sameinterest ”. I do not think, however, that the difference in phraseologyimplies any difference in the procedure to be followed in view of thefollowing words of Lord Macnaghten in the case of Duke of Bedford v.Ellis
“ Given a common interest and a common grievance, a representativesuit was in order if the relief sought was in its nature beneficialto all whom the plaintiff proposed to represent. ”
Now it was laid down in the case of Jones v. Garcia. Del Rioa, that whereby reason of similar or identical frauds (I do not suggest that there is theslightest evidence of fraud in the present case) a man obtains severalsums of money from numerous persons, his fraudulent object beingcommon to them all, they not having any common object as betweenthemselves, a representative action would probably be held not maintain-able. But a distinction was drawn in the case of Beeching v. Lloyd3.In the course of his judgment Kindersley V.C. said : —
“ It appears to me to be a just principle that if an individual inducesothers to enter into a partnership and induces them by fraudto put money into what purports to be a common stock, it isimpossible to say that each of those persons must file a separatebill. In such, case there is not only a common object in thepersons borrowing but a common object in those lending.Several persons here have been induced by fraud to concur inadvancing money for the formation of a joint stock company;and it appears to me that in that state of things a bill may befiled by several of them . . . . ”
Now applying that principle to the present case the elements of fraudand inducement being absent, the action, in. my view, was properly
• (1901) A. V. V- 1 at l>. S.* (1623) T. and Rum. 297.
61 Eng. Rep. 2 Drewry 227.
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MOSELEY J.—Suppiah Pillai v. Hamanathan.
brought by the plaintiffs on behalf of the class whom they claim torepresent. That some subsequent adjustment of the rights of theindividuals represented may be necessary appears to be immaterial.
I now come to the condition which the District Colirt attached to thegrant of permission so to sue, viz., that notice should be given to all thecontributors by publication in two issues of an English and Tamil news-paper respectively. Only one publication in each class of newspaperwas actually made, and the appellants claim that the action must,therefore, fail.
It does not appear how the omission occurred, but the learned DistrictJudge held that—“ nothing turns on the omission to give the notice inanother issue of the papers. The only persons entitled to complain arethe other depositories, and as this action is at their instance and for theirbenefit, they naturally have not made any such complaint. The defend-ant is in no way prejudiced by such omission ”.
I am unable to fall in with this view. The Judge who tried the casewas not the one who imposed the condition and there is nothing to showthat the former knew what was in the mind of the latter when he madethe order.
In Shiam Lai v. Musammat LaJli1, Walsh J. said : —
“…. Negligence to comply with the provisions of Order I.,
rule 8, is fatal to the granting of a decree to a plaintiff. Per-mission in terms of the rule is fundamental to representativeprocedure. The Court has no jurisdiction to ignore or to breakits own rules or to grant the decree in the face of a breach oflaw ….”
The Court in this case referred to the failure of the original Court toissue notice as required by the rule, and where, as in this case, the Courtin giving permission thought it necessary to have two publications of thenotice an omission to comply with this order is, in my opinion, quite asfatal to the representative character of the action as the failure topublish the notice required by the section.
For these reasons I think this case must go back to the District Courtin order that this condition may be complied with.
There is another point. Originally the plaint was filed against onedefendant, who by his answer, claimed that that he was only one partnerin a firm. The other partner was, therefore, added as a defendant. Theplaint, however, was not amended in such a way as to claim any reliefas against the added defendant, or to bring the added defendant specifi-cally within the scope of the claim. Furthermore, the learned Judge,at the framing of the issues, refused to hear Counsel for the addeddefendant or to frame any issue suggested by him. Notwithstanding thisit was held that the added defendant was represented by his attorney,the defendant, and was bound by the judgment.
In my view, the plaint should have been amended if the plaintiffdesired to obtain a decree binding on the added defendant and the addeddefendant should have been heard at the trial.
1 (1922) 44 Allah. 231 at p. 237.
SOERTSZ J.—Wittensleger v. Appuhamy.
93
I would, therefore, set aside the decree of the District Court and sendthe case back for the publication afresh of the notice in two issues of eachof the two newspapers named by the District Judge in his order ofFebruary 28, 1934- The defendant will be given an opportunity toamend his answer and the added defendant may file an answer, if he sodesires, and the case will proceed to trial de novo.
The respondents will pay to the appellants their costs of this appeal.The costs of the proceedings in the District Court will be costs in thecause.
Fernando A.J.—I agree.
Appeal allowed.