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1922 Supreme(Lah) 139
Lahore High Court
Campbell, J.
Mt Phillo & Ors. - Appellants
Versus
Gopi & Ors. - Respondents
Decided On : 28-07-1922
JUDGMENT
1. The plaintiffs brought a suit in the Court of the Munsif, Kangra, for damages against several defendants on the allegation that they had stopped the working of a water-mill belonging to the plaintiffs for a considerable period. One of the defendants entered in the plaint was dead before the plaint was filed. On this account the Munsif dismissed the suit in toto, and the order was upheld by the learned District Judge for reasons which it is difficult to follow.
2. The authorities quoted by the learned District Judge are in no way applicable and it is a trite proposition that the liability of a wrongdoer in tort is joint and several. Counsel for the respondents can show me no other authority for the action of the lower Courts. If one of the several defendants was not alive when the suit was brought, it was perfectly simple to strike his name out and allow the suit to proceed against the others. It would have been quite a different matter if the suits bad been filed against a single dead man or against a number of persons bound jointly by an obligation to perform some contract as was the case in Rao Ghulam Muhammad Khan v. Nahar Ali (1896) 53 P.R. 1896, a ruling referred to by the learned District Judge.
3. The Courts below have clearly failed to exercise the jurisdiction which they possessed to try the suit against the other defendants. I accept the petition, set aside the order dismissing the suit and direct that it shall proceed against those defendants (or their representatives) who were alive when it was filed.
