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DON SIMON APPUHAMI et al. v. MARTHELIS ROSA
NLR9V68
Present; Mr. Justice Wood Renton.
DON SIMON APPUHAMI et al. v. MARTHELIS ROSA.
C. R. Negombo, 13,370.
Misjoinder of causes of action-Several persons injured by one wrongful act-Distinct causes of action-One suit-Civil Procedure Code ss.11 and 17.
Where two persons, who were arrested and charged together
with the same offence in the same case and were acquitted, sued in one action
for damages for malicious arrest and malicious
prosecution-
Held, that the cause of action accruing to each was separate and distinct, and that the two causes of action should not have been combined, and that the suit was bad for misjoinder of causes of action.
The principle laid down in Sadler v. The Great Western Railway Co. (1896) App. Cas. 450 followed.
The authority of Booth v. Briscoe (2 Q. B. D. 496) doubted.
THE
plaintiffs sued the defendant in one action for damages for malicious arrest and
malicious prosecution, in that the defendant falsely and maliciously and without
reasonable or probable cause, caused them to be arrested on a charge of causing
mischief to a bull and thereafter prosecuted them for the same offence in the
Police Court of Negombo.
The Commissioner entered judgment in favour of the plaintiffs
for Rs. 105.
The defendant appealed.
E. W. Jayewardene, for defendant, appellant.
There are two plaintiffs in the case. They have two distinct claims, and two distinct causes of action against the defendant. The principle involved is the same as in Smurthwaite v. Hannay(1) which was followed in P. & O. Steam Navigation Co. v. Tsune Kijima(2) and Carter v. Rigby(3), The case of the improper joinder of defendants is similar in principle. In Sadler v. The Great Western Railway Co.(4) the House of Lords held that claims for damages against two or more defendants in respect of their several liability for separate torts cannot be combined in one action. A tort is a separate tort in respect of each man who complains.
Section 26 of the Indian Code is
the same as section 11 of our Code; such a joinder of plaintiffs as in this case
has been held to be bad(5).
Foot Notes:
| (1) (1894) A. C. 494. | (4) (1896) A. C. 450. |
| (2) (1895) A. C. 661. | (5) I. L. R. 11 Cal. 524; I. L. R. 8. Mad, 361. |
| (3) (1896) 2 Q. B. 113. |
The Judge has wrongly placed the onus on defendant. Moss v. Wilton(1).
R. Dornhorst, for plaintiffs-respondents.-The cause of action is the same and the plaintiffs rightly joined in one action. The object of the law is to avoid a multiplicity of actions.
Booth v. Briscoe(2) and Gort v. Bowney(3) support the present form of action.
E. W. Jayewardene, in reply.-In Smurthwaite v. Hannay, Lord Russell considered the cases of Booth v. Briscoe and Gort v. Bowney Booth v. Briscoe is practically over-ruled, and is no longer law.
5th April, 1906. WOOD RENTON J.-
I have had the advantage in this
case of a clear and full argument on both sides, and I propose to give judgment
at once. The two plaintiffs, who are the respondents in this appeal, sued the
defendant-appellant for malicious arrest and prosecution, and the learned
Commissioner of Requests has given judgment in their favour jointly for Rs. 105.
It is contended by the appellant that there has been an improper joinder of
these two plaintiffs, inasmuch as they have really separate causes of action,
which, under sections 11 and 17, C. P. C, cannot be joined. It seems to me to be
clear on the evidence that the causes of action involved in the present case are
separate. It is true that the acts out of which the litigation arises are
substantially the same-both the plaintiffs were charged with causing mischief to
a bull, both were arrested and taken into custody together, and both were
discharged after one and the same inquiry; but these considerations do not in my
opinion affect the question of the cause of action. A cause of action is a legal
wrong or claim. It is a legal entity dis
