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SUPPIAH PILLAI et al. v. RAMANATHAN et al.
NLR39V90
1936 Present:
Moseley J. and Fernando A.J.
SUPPIAH PILLAI et al. v. RAMANATHAN et al.
157-D. C. Kandy, 44936.
Action by plaintiffs in representative character-Common interest-Failure to
follow directions of Court regarding notice-Civil Procedure Code, s. 16.
Where plaintiffs, representing a number of persons, sued the defendants for the
return of money held by the latter for the benefit of the plaintiffs and those
whom they represented,-
Held, that the plaintiffs had a common interest in bringing the action within
the meaning of section 16 of the Civil Procedure Code.
Where the Court in giving permission to the plaintiffs to sue on behalf of the
others directed them to give the required notice under the section in two
publications,-
Held, that failure to comply with the order was a fatal irregularity.
APPEAL
from a judgment of the District Judge of Kandy.
H. V. Perera (with him C. E. S. Perera), for defendant,
appellants.
N. E. Weerasooria (with him E. B. Wikremanayake), for plaintiff,
respondents.
October 8, 1936. MOSELEY J.-
This is an appeal against a judgment of the District Court of Kandy in favour of
the plaintiffs who, representing a number of claimants, sued the defendants for
the return of money held by the latter for the benefit of the plaintiffs and
those whom they represented.
In the plaint the plaintiff applied for the Court's permission to bring the
action for and on behalf of themselves and a number of other Kanakapulles in
terms of section 16 of the Civil Procedure Code. The permission was granted on a
certain condition as to notice, to which I shall refer later.
The appellants inter alia challenge the propriety of the grant of permission to
the plaintiffs to sue in a representative capacity on the ground that there is
no community of interest.
No local authority in point has been brought to our notice. It is necessary,
therefore, to seek elsewhere for guidance.
It should be observed that whereas in section 16 of the Civil Procedure Code the
words " common interest" are employed, in the corresponding rule in the English
and Indian Procedure, the expression is "same interest". I do not think,
however, that the difference in phraseology implies any difference in the
procedure to be followed in view of the following words of Lord Macnaghten in
the case of Duke of Bedford v. Ellis'.[1 (1901) A. C. p. 1 at p. 8.]
Given a common interest and a common grievance, a representative suit was in
order if the relief sought was in its nature beneficial to all whom the
plaintiff proposed to represent."
Now it was laid down in the case of Jones v. Garcia Del Rio'[ 2 (1823) T.
and Russ. 297.] that where by reason of similar or identical frauds (I do
not suggest that there is the slightest evidence of fraud in the present case) a
man obtains several sums of money from numerous persons, his fraudulent object
being common to them all, they not having any common object as between
themselves, a representative action would probably be held not maintainable. But
a distinction was drawn in the case of Beeching v. Lloyd [3 61 Eng.
Rep. 2 Drewry 227.] In the course of his judgment Kindersley V.C. said : -
" It appears to me to be a just principle that if an individual induces others
to enter into a partnership and induces them by fraud to put money into what
purports to be a common stock, it is impossible to say that each of those
persons must file a separate bill. In such case there is not only a common
object in the persons borrowing but a common object in those lending. Several
persons here have been induced by fraud to concur in advancing money for the
formation of a joint stock company o and it appears to me that in that state of
things a bill may be filed by several of them . . . ."
Now applying that principle to the present case the elements of fraud and
inducement being absent, the action, in my view, was properly
