1920. Present: De Sampayo J. and Loos A.J.

APPUHAMY v. APPUHAMY et al.,

364-D. C. Chilaw, 6,168.

Conspiracy to charge another falsely-Action for damages-Joinder of parties-Civil Procedure Code, s. 14-" In respect of the same cause . of action "-Actio injuriarum-False information to ' police-Action against informer though he did not institute criminal proceedings-Proof of conspiracy.

Where three persons conspired together to charge another falsely with an offence, all the three may be sued together in an action for damages.

The actio injuriarum may be brought against a person who with the necessary intent puts the law in motion, though he may not himself institute proceedings in the Court.

THE facts appear from the judgment.

H. J. C. Pereira, for plaintiff, appellant.

A. St. V. Jayawardene, for defendants, respondents.

March 29, 1920. DE SAMPAYO J.-

The plaintiff brought this action for damages against the three defendants, alleging that they had conspired to charge the plaintiff .falsely with having shot and killed Martinu Thamel, and that in pursuance of their intent they maliciously gave false information to the police, in consequence of which the plaintiff was prosecuted in the Police Court case No. 5,824, in which the defendants likewise gave false evidence to the effect that the plaintiff had shot the said Martinu Thamel. The defendants took issue with the plaintiff as regards those allegations, and further pleaded that there was a misjoinder of parties, inasmuch as the defendants could not be sued together in the same action. This plea was, of course, unsustainable, since, if the defendants had conspired together as alleged, they could be sued jointly. Moreover, section 14 of the Civil Procedure Code provides that all persons may be joined as defendants against whom the right to any relief (as in this case) is alleged to exist, whether jointly, severally/" or in the alternative in respect of the same cause of action, and that judgment may be given against such one or more of the defendants as may be found liable, according to their respective liabilities, without any amendment. The expression " in respect of the same cause of action " creates no difficulty, because the plaintiff's cause of action in substance is the

alleged false and malicious prosecution.' Another point raised is that there was no prosecution at all by the defendants, inasmuch as the formal complaint in the Police Court proceedings was by a police sergeant, and not by any of the defendants. But under our law the actio injuriarum may be brought against any one, who with the necessary intent puts the law in motion, and I am satisfied on the evidence that it was the defendants, more especially the third defendant, who induced the headman and the police to act. As regards the main question, most of the facts are undisputed. It appears that there was a dispute between the plaintiff and the deceased Martinu Thamel about the right to a certain land. Thamel in assertion of his alleged right went upon the land, built a cadjan hut, and established himself there. The plaintiff, who is a headman, complained to the Mudaliyar, who fixed May 31, 1918, for inquiry, and directed the parties to come on that day. The plaintiff went, but Thamel did not. On June 1 plaintiff instituted a case against Thamel, and against the first defendant, the third defendant, who was Thamel's brother, and some others, who were alleged to have joined Thamel in the act of trespass. There is no reason to doubt that the defendants did assist Thamel. On June 4, while Thamel was in the hut, he was shot at and injured in the leg. He was taken to hospital, and there died on June 12. The plaintiff, on the information of the defendants, was first charged with attempt to murder Thamel, and after Thamel died he was charged with the principal offence of murder. The case resulted in the plaintiff being discharged, a