TMI Blog1931 (8) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... es on to allege, that in a partition entered into subsequently between himself and his brother, the suit village fell to his share and that by reason of the aforesaid fraud of the defendants at the time of the sale, he is entitled to recover from them compensation. The measure of damages is stated to be the amount received by the defendants in excess of what was actually payable to them together with interest thereon. It was further alleged that the fraud was discovered on the 24th of April, 1919, on which date the cause of action was said to have arisen. It will be necessary to advert presently to the course taken by the suit in the Lower Court; but, for the present, it is sufficient to observe, that the plea of non-joinder was taken on the 23rd of October, 1922, which led to the raising of an issue on that point and that the plaintiff thereupon, on the 19th of July, 1923, presented an application requesting his brother to be added as a pro forma defendant. It is common ground that, if the suit had been instituted on the last mentioned date, it would have been barred by limitation. The Lower Court's judgment is obscure in several places, but its decision, both parties agree, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be regarded as one for breach of contract, both the promisees being alive, the suit should have been brought by both of them. One of the promisees alone could not, under this section, maintain the suit. If this suit is, on the other hand, to be regarded as one of pure tort, the objection of non-joinder cannot prevail. Odgers, Vol. II, p. 475, already quoted. In Halsbury's Laws of England, Vol. XXIII, para. 173, the law is thus stated: Where several persons are injured by a joint tort, it is not necessary that all who are injured should join as plaintiffs; any one of the persons injured may sue without joining the others. 7. See also Roberts v. Holland (1893) 1 Q.B. 665. 8. What then is the test of this distinction between an action of tort and an action for a wrong arising out of contract? The general rule is, that where a contract exists, the suit must be in contract and not in tort. But the fact that there is a contract will not prevent the plaintiff from suing in tort if he can do so without relying on the contract; for example, a physician who harms his patient by negligently administering a deleterious drug is guilty of a wrong which is both a breach of contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e faith of that representation A may deliver the horse to B. Again, the representee's alteration of position may assume the form of a contract with the repre-sentor. In both these cases, an action for deceit will lie. In the former, the representee has not to rely upon any contract; in the latter, without relying upon the contract, he gets no cause of action at all. 11. (Halsbury's Laws of England, Vol. XX, paras. 1690, 1692 and 1737.) 12. Now let us turn to the plaintiff's own allegation in his plaint. He says,, in paragraph 10, that what he seeks to recover is the difference between what was paid as the price and what would have been payable had there been no fraud. How could the plaintiff in the face of this say, that what he paid was not in pursuance of the contract of sale? In assessing damages in actions for deceit, there is only one side to the account when the alteration of the representee's position consists in some act other than his entering into a contract, or, there are two sides to the account when the alteration assumes the form of a contract. In this case, on the one side of the account must be placed what the plaintiff alleges he paid on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -joinder. Order 8, Rule 9, Civil Procedure Code, enacts, that no additional written statement shall be presented except by the leave of the Court. Order 6, Rule 7 prescribes, that no pleading shall, except by way of amendment, raise any new ground of claim. The effect of these two provisions is, that no new plea shall be allowed except by way of amendment of the original pleading and that no new pleading shall be filed except by the leave of the Court. The order of the Judge on this application, dated 31st October, 1922, reads thus: No objection. Permitted to file additional written statement. 15. The leave was thus granted by the Court and, as the order shows, without objection. So far, the provisions of the Code were not infringed. But Order 1, Rule 13, Civil Procedure Code, says: All objections on the ground of non-joinder or misjoinder of. parties shall be taken at the earliest possible opportunity and, in all cases where issues, are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived. 16. For the appellant it is contended that the objection as to non-j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyond the power of the parties to impugn the judgment later. The contention, therefore, raised for the appellant based on waiver must on each one of these grounds be rejected. 18. It now becomes necessary to refer to a curious order made by the judge on which the next contention of the appellant is based. When the 3rd defendant applied to be permitted to file an additional statement, he also applied by a separate petition that fresh additional issues might be raised. Both the applications were disposed of on the same day. After making an order as already stated on the 31st of October, 1922, permitting the 3rd defendant to file a fresh statement, the Judge, on the same date, passed the following order: The respondents' pleader objects to the framing of the first issue on the ground that it amounts to non-joinder of plaintiffs and that the objection should have been taken at the earliest opportunity but on the first issue asked for the defendants' pleader wants to argue it as a question of law, whether plaintiff alone has got right to maintain the suit for the whole amount of damages claimed by him. ft is only in that aspect the first issue is allowed. 19. The first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctised upon their vendee, that is to say, his vendor? Clearly not. Further, there was only a transfer of the property, but there was no transfer of the right to sue apart from the objection that a mere right to sue cannot be transferred. (See The Transfer of Property Act, Section 6(e) and Halsbury's Laws of England, Vol. XX, paragraph 1742.) This is not a case of a covenant which runs with the land. This contention of the appellant is also rejected. 22. Section 22 of the Limitation Act provides inter alia, that when a new party is added as a plaintiff, the date of his being so added is to he considered as regards him as the date of the institution of the suit. If such a party is added beyond time, what is the result? It is tantamount to his being brought on the record and then his name being forthwith struck out. The suit was imperfect as originally constituted. The adding of a party whose claim has become barred does not cure the defect. On this ground, it has been held in numerous cases, that when necessary parties are not joined within the period of limitation, the suit must be dismissed. In this case, the Judge refused to add the plaintiff's brother as a party. This ..... X X X X Extracts X X X X X X X X Extracts X X X X
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