Caroline Soysa V. Lady Ratwatte

1944 Present: Howard C.J. and de Kretser J.

CAROLINE SOYSA et al. Appellants, and LADY RATWATTE et al.
Respondents.

80-D. C. (Inty.) Kandy, 457.

Action-Right to sue in a representative capacity-Persons having a common interest-Permission to sue granted-Notice to show cause-Proceedings irregular-Proper application of section-Civil Procedure Code s. 16.

Where permission is given by Court under section 16 of the Civil Procedure Code to a party to sue on behalf of persons having a common interest in bringing the action, the section imposes on the Court, after granting such permission, the duty of giving notice of the - institution of the action to all persons on behalf of Whom the action is brought.

Where the Court, after giving permission to sue, proceeded to direct notice of the application to sue to be given in the newspapers inviting persons interested to show cause against the application,

Held, that the notice was misconceived and that the proceedings were irregular. On an application for leave to the under section 16 such objectors are not entitled to be heard.

Where the applicants for permission to sue on behalf of an Association claimed the right to represent a section of the members, who held certain-views with regard to its management at the time of the institution of the proceedings, it is not . a valid objection- to the application that the whole body on whose behalf the proceedings are taken is not of the same opinion.

THE appellants applied to the District Court of Kandy for. permission to sue one H. L. Ratwatte on behalf of certain members of an Association called the Sadachara Bauddha Kulangana Samithiya in order to terminate the said Ratwatte's management of a school established by the Association. The appellants also asked the Court to direct notice of the said application to be given to members by publication in a newspaper. The application was supported by an affidavit in which the appellants stated that they and a certain number of the members: of the Association had the same interest in the action while certain others had acted in a way inconsistent with' the duty they owed to the Association. As a result 'of the notice the intervenients filed objections and the learned District Judge after hearing the objections dismissed the application. The learned Judge held that -If the applicants are to .be deemed members of the Association the intervenients are equally entitled to rights of membership. He further held that an application for a representation order cannot be entertained on behalf of one section of the Association.

H. V. Perera, K.C. (with him N. Nadarajah, K.C., and H. W. Thambiah), for the petitioner, appellants.-This is an appeal from an order made under section 16 of the Civil Procedure Code. Section 16 contemplates a summary application by persons who desire to due on behalf of all persons interested in bringing or defending the action. The scope and nature of

an inquiry under section 16 has been misunderstood by the District Judge. It is clear that two or three persons of an Association cannot prevent au action being brought by the others against a wrongdoer. The only question before the District Judge was whether the petitioners could bring the action on behalf of the 77 members surviving out of the original 118 members of the Association. The only point for his consideration was whether there were numerous parties having a common interest. The issues framed by the District Judge were unnecessary at that stage. A dissenting minority, or even a dissenting majority, cannot, wreck an action-Wilson, v. Church [1 (1878) 9 Ch D.552.]; Eraser v. Cooper, Hall A Co. [2 (1882) 21 Ch. D. 718.]. See also the remarks of Lord Lindley in The Taff Vale Railway Co. v. The Amalgamated Society of Railway Servants [3 (1901) A.C.426 at P.442 ], and The Duke of Bedford v. Ellis [4 (1901) A.C. 1].

M. T. de S. Amerasekere,

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