014-SLLR-SLLR-2004-V-1-URAGODA-v.-JAYASINGHE-AND-OTHERS.pdf
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URAGODAv
JAYASINGHE AND OTHERSSUPREME COURTISMAIL, J.
DE SILVA, J. ANDJAYASINGHE, J.
S.C. APPEAL NO. 73/2002
A./L.A. NO 332/2000
C. COLOMBO CASE NO. 20652/ MR18 JUNE and 31 JULY, 2003
Civil Procedure Code – Alleged misjoinder of defendants and causes of action- Issues raised after the commencement of trial – Duty to set up such issuesat the earliest possible opportunity – Sections 18,22 and 91 of the Code – Mayan action be dismissed for misjoinder of causes of action?
The plaintiff consulted Dr. Uragoda (the 1st defendant) at the “Glass House” ofwhich the 2nd to 6th defendants were partners, for fever and cough. Asadvised, the plaintiff obtained an X- ray, from the Glass House, on the basis ofwhich Dr. Uragoda treated the plaintiff for tuberculosis. Since the plaintiff did
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not recover he took a 2nd X-ray from another institution. That X-ray showed notuberculosis. On Dr.Uragoda's treatment thereafter, the plaintiff recovered;whereupon the plaintiff sued Dr. Uragoda and 2nd to 6th defendants for dam-ages.
At the trial on 17.01.2000 issues were raised by the 1st defendent inter aliastating that there was a misjoinder of defendants and of causes of action whichissues the defendants, applied to be taken up as preliminary issues of law.
On 20.10.2000 the District Judge held in favour of the plaintiff on the saidissues.
Held:
Section 22 of the Civil Procedure Code (“the Code”) requires issues of mis-joinder of parties to be raised at the earliest possible opportunity before thehearing but in this case issues were raised after the trial commenced.
The issue of misjoinder of parties ought to have been taken by motion interms of section 91 read with section 18 of the Code.
The Court has no power to dismiss an action for misjoinder of causes ofaction.
As such the plaintiff was entitled to succeeded on the issues relating to mis-joinder.
Cases referred to:
Adlin Fernando and Another v Lionel Fernando and Others (1995) 2 Sri LR
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Podihamy v Simon Appuhamy 47 NLR 503 at 504
Ameerv Kulatunge (1996) 2 Sri LR 398
Appuhamy v Pagnananda 67 NLR 89
APPEAL from the judgment of the Court of Appeal
S.L Gunasekera with Shanaka de Livera for appellant.
W.Dayaratne for plaintiff-respondent
Romesh de Silva, P.C. with Hiran de Alwis and Sugath Caldera for 2nd to 6thdefendant-respondents
Cur.adv.vult
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October 15 2003DE SILVA, J.
The short point which arises for consideration in this appeal is 1whether there is a misjoinder of defendants and causes of actionand if so the effect of such misjoinder. The objection to misjoinderwas taken up by the defendant-appellants in the District Court andthis was overruled. The defendant-appellant’s leave to appealapplications, viz. C.A. 332/2000 and 337/2000 to the Court ofAppeal were also unsuccessful mainly on the ground that thedefendants have failed to take up the objection of misjoinder at theearliest opportunity but have taken it up only at the stage of fram-ing issues, that is after commencing the trial in the case on 10
Hence the present appeal by the 1st respondent-appellant to this Court.
In this action the plaintiff-respondent (hereinafter referred to asplaintiff) instituted an action against the 1st respondent-defendant-appellant and 2nd -6th defendant-respondents (hereinafter referred to as 1-6 defendants) averring in the plaint inter alia as follows:
On the 31st October 1996 the plaintiff consulted the 1st defen-dant who is a Medical Specialist to obtain treatment for fever and acough at the ‘Glass House’ where a medical channel service and amedical laboratory are run by the 2nd-6th defendants. On the 20advice of the 1 st defendant the plaintiff got an X-ray from the ‘GlassHouse’ and immediately saw the 1st defendant with the said X-ray.Having examined the X-ray the 1st defendant informed the plaintiffthat he is suffering from tuberculosis and prescribed drugs for 15days.
As there was no improvement in his condition the plaintiff con-sulted the 1st defendant once more on the 11th of November 1996and he was informed that the X-ray obtained from ‘Glass House’was not correct and was advised to get another X-ray from anoth-er institution. The plaintiff thereupon got another X-ray from a dif- 3cferent institution and tendered the same to the 1st defendant whoupon examining it, informed the plaintiff that he was not sufferingfrom tuberculosis and that he had only a cough and advised theplaintiff to stop taking drugs prescribed earlier and to take some
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other drug. The plaintiff did so and had good results.
Thereafter the plaintiff sued 1st defendant and 2nd -6th defen-dants for damages and estimated his damages at Rs.1,500,000and prayed for judgment against 1 st-6th defendants jointly and sev-erally.
The 1st defendant petitioner filed his answer denying liability 40and sought the dismissal of the plaintiff's action or to return thesame for amendment in terms of section 46(2) of the CivilProcedure Code.
The 2nd-6th defendants jointly filed their answers denying theseveral averments of the plaint and sought dismissal of the action.When this case was taken up for trial on the 17th of January 2000,
11 admissions and 29 issues were recorded and the counsel fordefendants moved that issue numbers 17-22 raised by the 1stdefendant and issue numbers 26,27 and 28 raised by the 2nd -6thdefendants be tried as preliminary issues of law and accordingly sothe Court allowed the said application.
The said issues are as follows:
Does the plaint not disclose a cause of action for the plaintiffto sye the 1st defendant?
Is there a misjoinder of defendants in the plaint?
Is there a misjoinder of causes of action in the plaint?
Is the plaint not in accordance with the provisions of section40(d) of the Civil Procedure Code?
Can the plaintiff have and maintain this action as presently
constituted?60
If one or more of the aforesaid issues 17-21 are answered infavour of the 1st defendant should the plaint be rejected interms of section 46(2) (d) of the Civil Procedure Code?
Does the plaint disclose a cause of action against the 2nd-6th defendants?
is there a misjoinder of parties?
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Is the plaint not in conformity with the provisions of the CivilProcedure Code?
On the written submissions tendered by parties the learnedDistrict Judge pronounced the order on 20.10.2000 answering the 70above issues in favour of the plaintiff. The Court of Appeal too dis-missed the leave to appeal application on 17.05.2002.
Learned counsel for the 1st defendant contended that theCourt of Appeal erred in coming to the conclusion that there was adelay in raising the objection regarding the misjoinder because inthe answer itself the defendants referred to this fact and the DistrictJudge should have taken action under provisions of section 46(2)of the Civil Procedure Code.
It is to be noted that a trial before a District Court is not a trialon the pleadings but a trial on the issues and the trial commences sowith the framing of the issues. The issues in the action were framedand accepted on the 17.01.2000. Thus the Court of Appeal wascorrect when it came to the conclusion that the “trial has alreadycommenced on 17.01.2000.”
Section 22 of the Civil Procedure Code provides that “allobjections for want of parties who have no interest in the action orfor misjoinder as co-plaintiffs or co-defendants, shall be taken atthe earliest possible opportunity and in all cases before the hearingand any such objection not so taken shall be deemed to have beenwaived by the defendants”.90
Section 18 of the Civil Procedure Code permits Court on orbefore the hearing upon application of either party to strike out thename of any party improperly joined as plaintiff or defendant.
The question then arises as to what procedure the defendantsshould have then followed in raising the objection of the misjoinderof defendants and causes of action. Section 91 of the CivilProcedure Code provides the answer. Such objection should havebeen taken before the hearing by way of a motion and a memo-randum in writing.
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In these circumstances the observations of Ranaraja, J. in AdlinFernando and another v Lionel Fernando and others 0) are relevantand appropriate. The paramount factors for consideration of courtshould be whether:
it can conveniently try and dispose of the causes of actionbefore it;
all parties necessary in order to enable it to effectively and com-pletely adjudicate and settle all questions involved in the actionare present as parties.
Ranaraja, J. further observed that “what is important however isthat the provisions of the Civil Procedure Code relating to the joinderof causes of action and parties are rules of procedure and not sub-stantive law. It follows that the Courts should adopt a common senseapproach in deciding questions of misjoinder or non joinder”.
Dias, J. also voiced similar sentiments in Podihamy v SimonAppuhamy (2) in the following terms. “It is well to remember that thecourt should not be fettered by technical objections on matters of pro-cedure.”
In the instant case the learned Counsel for the 1st defendant aswell as 2nd-6th defendants admitted that on the facts alleged in theplaint 1st defendant and 2nd-6th defendants could be sued separate-ly but not in the same action.
It is to be noted that “an action” is a proceeding for the preven-tion or redress of'a wrong; “cause of action” is the wrong for the pre-vention or redress of which an action may be brought and includes thedenial of a right, the refusal to fulfill an obligation, the neglect to per-form a duty and the infliction of an affirmative injury”.
Section 14 of the Civil Procedure Code states that “all personsmay be joined as defendants against whom the right to any relief isalleged to exist whether jointly, severally or in the alternative, inrespect of the same cause of action, and judgment may be givenagainst such one or more of the defendants as may be found to beliable, according to their respective liabilities without any amendment.”
It is abundantly clear from the above that where a plaintiff insistson proceeding with a trial on causes of action or defendants wrongly
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joined, Court has the discretion to give judgment in favour of one ormore of the plaintiffs as may be entitled to the relief claimed on the evi-dence led at the trial under the provisions of section 11 of the Code orgive judgment against one or more defendants, as may be found tobe liable according, to their respective liabilities under .section 14. Inother words it is the duty of Court to deal with the matter in controver- 140sy so far as regards the rights and interest of the parties actuallybefore it.
In the instant case the plaintiff has based his cause of action onthe ground of negligence of the defendants. Therefore I hold that thereis no misjoinder of defendants or causes of action.
Evidence has to be led to ascertain whether the defendants areliable and if so what amount to be paid to the plaintiff. It will certainlybe convenient to Court to decide the above at one trial.
At this juncture it is pertinent to note the comments made by for-mer Chief Justice G.P.S. de Silva in Ameer v Kulatungd3) Citing isoAppuhamy v Pagnananda Thero (4) that “court cannot dismiss anaction on the ground of misjoinder of causes of action.
For the reasons stated above the appeal fails and is dismissedwith costs fixed at Rs. 20,000/-.
ISMAIL J. – I agree.JAYASINGHE, J. – I agree.Appeal dismissed.