Adlin Fernando and Another v. Lionel Fernando and Others
ADLIN FERNANDO AND ANOTHERv.
LIONEL FERNANDO AND OTHERS
COURT OF APPEAL.
S. N. SILVA, J. (P/CA)
A. REVISION 915/87
C. PANADURA 17914/LMARCH 14, 1995.
Gift – Deed of Gift – Revocation – Action – Cause of action – Civil ProcedureCode, Sections, 11, 14, 18, 22, 36, 37, 90. Joinder of Causes of Action andParties. Objection – Applicability of Rules and Procedure.
The plaintiffs-petitioners instituted action against the respondents jointly – andseverally for a declaration that several deeds of Gift are null and void or, in thealternative, sought revocation of same, and damages.
When the petitioners filed plaint, they also moved Court for Leave to join thecauses of action and parties to the action, and on accepting the plaint, to issuesummons on the respondents.
The petitioners – the donors allege that, the 1st respondent acting jointly with the2nd and 3rd respondents obtained their signatures by deceit.
The defendants raised the objection of misjoinder of parties and causes of action,which was upheld by Court.
That provisions of the Civil Procedure Code relating to the joinder of causes ofaction and parties are rules of procedure and NOT substantative law. Courtsshould adopt a common sense approach in deciding questions of misjoinder ornon-joinder.
Section 18 permits Court on or before the hearing upon application of eitherparty to strike out the name of any party improperly joined. Section 36 providesthat if any cause of action cannot be conveniently tried, for Court ex mero motu oron the application of the defendants with notice to the plaintiff at any time beforethe hearing or on agreement of the parties after the commencement of thehearing to order separate trials of any cause of action.
Sri Lanka Law Reports
 2 Sri L.R.
It is not open to the Defendant to await the framing of Issues and then, withoutprior notice to the plaintiff, frame Issues on misjoinder of parties or causes ofaction.
APPLICATION for revision of the order of the District Court of Panadura.
P. A. D. Samarasekera, RC. with K. Sri Gunawardenator petitioners.
Faisz Musthapha, P.C. with S. Jayawardena for respondents.
Cur. adv. vult.
March 20, 1995.
This is an application in revision from the order of the DistrictJudge dated 24.7.87. By that order the learned Judge held that therewas a misjoinder of plaintiffs and causes of action and that thepetitioners could not proceed with the action as constituted.
The petitioners instituted action against the respondents jointly andseverally, for a declaration that the Deeds of gift Nos. 335, 336, 337and 338 dated 9.4.80 and attested by P. D. G. Wimalaratne, NotaryPublic, are null and void or in the alternative, for a revocation of thesaid Deeds and damages. The donor on Deeds Nos: 335 and 337 isthe first petitioner and the donees are the 4th and 2nd respondentsrespectively. Deed No: 336 is a gift by the 2nd petitioner in favour ofthe 3rd respondent. Both petitioners are the donors on Deed No: 338in favour of the 1st respondent. Each Deed is in respect of a differentproperty. The 1st respondent has accepted the gifts in favour of the2nd to 4th respondents. The 4th respondent who was a major at therelevant time, denies any knowledge of the gift in his favour. Thepetitioners are two sisters. The 2nd petitioner is deaf and dumb frombirth. The 1st respondent is their brother. The 2nd and 3rdrespondents are the children of the 1st respondent. The 4threspondent is a son of another brother of the petitioners.
The petitioners allege that the 1st respondent, who was aGovernment Agent at the relevant time, on the pretext that thesignatures of the petitioners were needed on certain papers to befiled in respect of a claim for compensation for land acquired by thestate for road expansion from the petitioners, acting jointly with the
CAAdlin Fernando and Another v. Lionel Fernando and Others (Ranaraja, J.)27
2nd and 3rd respondents, obtained the signatures of the petitionerson the said Deeds by deceit. On this basis, the petitioners seek tohave the said Deeds declared null and void, or in the alternativerevoked. The petitioners are in possession of the properties gifted onthe four Deeds. However, they have added a claim for damages in asum of Rs. 50,000/- against the first three respondents.
An “action” includes a proceeding for a redress of a wrong and a"cause of action" is a wrong for the redress of which an action maybe brought. A "wrong" includes a denial of a right, in the instant case,the petitioners seek a redress from a denial of a right, namely thedenial of their title to the properties which have allegedly been giftedto the respondents on the four Deeds. The basis of the denial of theirright is the fraudulent act of the 1st to 3rd respondents in obtainingtheir signatures on the Deeds by deceit.
Section 11 of the Civil Procedure Code permits all persons inwhom the right to relief claimed is alleged to exist jointly, severally orin the alternative, in respect of the same cause of action, to be joinedas plaintiffs, subject to the condition that plaintiffs cannot join inrespect of distinct causes of action. Similarly, Section 14 of the Codepermits all persons against whom the right to any relief is alleged toexist, jointly, severally or in the alternative in the same cause of actionto be joined as defendatns. Section 36 of the Code permits plaintiffshaving causes of action in which they are jointly interested against thesame defendants to unite such causes of action in the same action.
When the petitioners filed plaint on 30.7.82, they also moved Courtfor leave to join the causes of action and parties to the action, and onaccepting the plaint, to issue summons on the respondents. Thecopy of the journal entries filed show that the plaint has beenaccepted and an order for the issue of summons on all therespondents has been made on 9.9.82.
What is of importance however is, that the provisions of the CivilProcedure Code relating to the joinder of causes of action andparties, are rules of procedure and not substantive law. It follows, thatCourts should adopt a common sense approach in deciding questionsof misjoinder or non-joinder. Section 18 permits Courts on or before the
Sri Lanka Law Reports
 2 Sri LR.
hearing upon application of either party to strike out the name of anyparty improperly joined as plaintiff or defendant. Section 36 provides,if any cause of action cannot be conveniently tried or disposed oftogether, for Court to ex mero motu or on the application of thedefendants with notice to the plaintiff, at any time before thehearing, or on agreement of the parties after the commencementof the hearing, to order separate trials of any causes of action. Inwhich event, Court may order some causes of action to be excludedand direct the plaint in the action to be amended accordingly. Thus itis clear that if any objection to misjoinder of causes of action is raisedby the defendants, it has to be done before the hearing. It is not opento a defendant to await the framing of issues by the plaintiff, and thenwithout prior notice to the plaintiff, frame issue on misjoinder ofparties or causes of action. The rationale behind these provisions isthat Court should not be called upon to embark upon an inquiry intowhether there was a misjoinder of parties or causes of action, afterthe trial proper has commenced, and thereby sidetrack the Courtfrom deciding the substantial issues in the case, into decidingquestions of procedure.
The overriding factors for consideration of Court should be whether:
it can conveniently try and dispose of the causes of action before itand (b) all parties necessary in order to enable it to effectually andcompletely adjudicate upon and settle all questions involved in theaction are present as parties. The proper course in such instance is tofollow the provisions in sections 22 and 37 of the Code.
Section 22 provides:
"All objections for want of parties, or for joinder of parties whohave no interest in the action, or for the misjoinder as co-plaintiffsor co-defendants, shall be taken at the earliest opportunity, and inall cases before the hearing. Any such objection not so takenshall be deemed to have been waived by the defendant.
Similarly section 37 Provides:
"Any defendant alleging that the plaintiff has united in the sameaction several causes of action, which cannot be conveniently
CA Adlin Fernando and Another v. Lionet Fernando and Others (Ranaraja, J.)29
disposed of in one action, may at any time before the hearingapply to Court for an order confining the action to such of thecauses of action as may be conveniently disposed of in oneaction.”
What procedure should the respondents then have followed inraising the objections to the misjoinder of plaintiffs and causes ofaction? The answer is provided in section 90 of the Code. Suchobjections should have been taken before the hearing, by way ofmotion and a memorandum in writing. The failure to follow thesesteps by the respondents, by itself, was a sufficient ground to refusehim permission to frame an issue on misjoinder, let alone answer theissue in the affirmative. The order dated 24.7.87 is accordingly setaside.
Where a plaintiff insists on proceeding with a trial on causes ofaction or defendants wrongly joined, Court has the discretion to givejudgment in favour of one or more of the plaintiffs as may be entitledto the relief claimed, on the evidence led at the trial, under theprovisions of Section 11 of the Code, or give judgment against one ormore defendants, as may be found to be liable according to theirrespective liabilities, under Section 14. In other words, it is the duty ofCourt to deal with the matter in controversy so far as regards therights and interests of the parties actually before it. Court is notempowered to dismiss an action for misjoinder or non-joinder ofparties or misjoinder of causes of action.
In the instant case the evidence that has to be led, to set asideeach of the relevant Deeds, will be the same. It will certainly beconvenient for Court to decide the validity of the said Deeds at onetrial. No obvious prejudice will be caused to any of the defendants byadopting such a course.
The Learned Judge has failed to follow the rules of procedure setout in the several Sections in the Civil Procedure Code referred to.Therefore, the application for revision of the order of the LearnedDistrict Judge is allowed with costs.
Sri Lanka Law Reports
 2 Sri LR.
This order will bind the parties in the connected leave to appealapplication No: 104/87.
S. N. SILVA, J. -1 agree.
ADLIN FERNANDO AND ANOTHER V. LIONEL FERNANDO AND OTHERS