London And Lancashire Fire Insurance Company V. P & O Company Et Al.,

[FULL BENCH]

1914. Present : Pereira J., Ennis J., and De Sampayo, A.J.

LONDON AND LANCASHIRE FIRE INSURANCE CO. v.
P. & O. COMPANY et al.

78-D. C. Colombo, 37,533.

Joinder of parties-Alternative claim against two defendants-Joinder of causes of action-Civil Procedure Code, ss. 14 and 36.

Plaintiff, an insurance company, sued the two defendant companies to recover the value of sugar lost in the Colombo harbour consequent on a collision between the barge belonging to second defendant company and the steamer belonging to first defendant company, from which the sugar was transferred to be conveyed to shore.

The plaint averred-

9th paragraph-The loss of the said 310 bags of sugar was due to the negligence of the servants of the defendants jointly or to the negligence of the servants of one or other of the defend-ants, and if the said loss was not caused by the joint negligence of the defendants' servants, the plaintiff company, being unable to discover which of the defendants was liable for the said loss, sues them in the alternative.

10th paragraph.-As a separate and alternative cause of action against the second defendant company, the plaintiff company says that the second defendant company as a common carrier received the said 310 bags of sugar to be carried from the ss. Delta to the shore, and that the said bags were lost in the course of transit while in the second defendant's custody, and the second defendant wrongfully failed to deliver the same.

Held (per PEREIRA J. and DE. SAMPAYO A.J.), that the two defendants were rightly joined in respect of the first cause of action.

Held, further (per PEREIRA J. and ENNIS J., dissentiente DE SAMPAYO A.J.), that the joinder in this action of the claim against the second defendant company on a different cause of action (10th paragraph) was not a misjoinder of causes of action.

The Court may in its discretion order a separate trial of the additional claim on the further cause of action.

PEREIRA J. obiter.-An objection to an action by a defendant on the ground of misjoinder or non-joinder of parties is not to be taken by way of answer. It should be taken by motion or application at the earliest opportunity.

THE facts are set out in the judgment of the Acting Additional District Judge (Mr. K. Balasingham):-

One Soolemanjee insured with the plaintiff company for a sum of 5,000 dollars 500 bags of sugar shipped on board the ss. Delta belonging to the Peninsular and Oriental Company, Limited, who is the first

defendants in this case. On the arrival of the ss. Delta at Colombo 310 bags of sugar were transferred to a barge belonging to the Ceylon Wharfage Company, who is the second defendant in this case, to be conveyed from the steamer to the shore. The barge collided with the ss. Delta and was sunk and the bags of sugar were lost. The plaintiff company paid the value of the sugar in terms of the marine insurance policy and got an assignment of the rights of the consignee. The plaintiff company seek in this action to recover from the defendants the value of the 310 bags of sugar. The case is now before me for the decision of the issues as to misjoinder of parties and causes of action, namely, issues 1, 2, 3, and 3A.

The cause of action against the defendants is set out in the plaint in those terms in paragraph 9: -

"9. The loss of the said 310 bags of sugar was due to the negligence of the servants of the defendants jointly or to the negligence of the servants of one or other of the defendants, and if the said loss was not caused by the joint negligence of the defendants' servants, the plaintiff company, being unable to discover which of the defendants was liable for the said loss, sues them in the alternative. "

The cause of action set out in the paragraph is one arising out of a tort, as stated by Mr. Hayley, the counsel for the plaintiff company.

A separate and

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