G. P. S. DE SILVA, C.J.
C.A. REV 3/95.
DC COLOMBO 7919/RE.
AUGUST 20, 1996.
Rent and Ejectment – Rent Act 7 of 1972 – Civil Procedure Code S 36.Misjoinder of causes of action – Termination of Tenancy – Notice to quit -Sinhala copy of plaint different from English copy.
The Plaintiff Appellant instituted action to eject the Defendant – Respondentfrom four premises bearing Assest. Nos. 65, 63 1/1, 631/2 and 71 .The DistrictCourt decided to try the issues on misjoinder of causes of action as preliminaryIssues. The District Court answered these issues in favour of the Plaintiff andmade order setting down the case for Trial on the remaining issues.
The Defendant moved in Revision and submitted that there has been notermination of the Tenancy in respect of premises No. 71, as para 9 of theSinhala copy of the plaint it is averred that on or about 9.7.92, the Plaintiffby his Attorney-at-Law gave the Defendant notice to quit the premises 65,63 1/1, 63 1/2 and there was no reference to premises No. 71 in para 9 ofthe Sinhala copy.
Although this matter was not raised before the District Court, the learnedDistrict Judge in his order noted the fact that in the English copy of thePlaint para 9 refers to premises No. 71 as well.
The Court of Appeal took the view that there is no provision in law for theDistrict Judge to refer to the English copy of the Plaint to supplement theommision in the plaint in Sinhala, and the Plaintiff cannot eject the Defendantfrom Premises No. 71 as prayed for without terminating the Tenancy inrespect of the premises; that there is a misjoinder of causes of action. TheCourt of Appeal dismissed the Plaintiffs action, on appeal.
(1) On reading of the entirety of the plaint in Sinhala ft is clear that the
omission in para 9 to refer to premises No. 71 is only a typographical error.
The Court of Appeal had overlooked the fact that the Notice to quitrefers not only to premises No. 65, 63 1/1, 63 1/2 but also to No. 71.
Reference to the English copy of the Plaint (by the District Judge)would merely confirm, if confirmation was necessary, the conclusion arrivedat by a scrutiny of all the averments in the Sinhala plaint.
Section 36 of the Civil Procedure Code permits the Plaintiff to uniteseveral causes of Action against the same Defendant.
Court cannot dismiss an action merely on the ground of misjoinder ofCauses of Action.
APPEAL from the judgment of the Court of Appeal.
Cases referred to:
Morais v. Victoria – 73 NLR 409 at 413.
Dingiri Appuhamy v. Pagnananda Them 67 NLR 89 at 90.
A. K. Premadasa, P.C. with G. H. A. Suraweera and C.E. de Silva for thePlaintiff-Appellant.
Rohan Sahabandu for Defendant-Respondent.
Cur. adv. vult.
September 06, 1996.
G. P. S. DE SILVA, C. J.
The Plaintiff instituted these proceedings seeking, inter alia, theejectment of the Defendant from four premises bearing assessmentNos. 65, 63 1/1, 63 1/2 and 71, Jayantha Weerasekera Mawatha,Colombo 10. In his plaint the Plaintiff averred that the premises insuit are “excepted” premises and accordingly the provisions of theRent Act have no application. The Defendant in his answer pleadedinter alia, that the premises are governed by the provisions of theRent Act.
The District Court decided to try issue Nos. 10, 11 and 12 aspreliminary issues of law. These issues read as follows:
Issue No. 10 – Is there a misjoinder of causes of action as pleadedin the plaint?
Issue No. 11 – If the above issue is answered in the affirmative, canthe Plaintiff have and maintain this action?
Issue No. 12 – Does the plaint conform to the imperative provisionsof the Civil Procedure Code?
The District Court having considered the submissions made byCounsel for both parties delivered its order answering all three issuesin favour of the Plaintiff and made order setting down the case for trialon the remaining issues. The Defendant thereupon moved the Courtof Appeal by way of an application in revision to have the order of theDistrict Court set aside. The Court of Appeal set aside the order ofthe District Court and answered the preliminary issues in favour ofthe Defendant. Hence the present appeal preferred to this court bythe Plaintiff.
At the hearing before the Court of Appeal, Counsel for the De-fendant Petitioner submitted that there has been no termination ofthe tenancy in respect of the premises bearing assessment No. 71.Counsel relied on paragraph 9 of the Sinhala copy of the plaint, whereinit is averred that on or about 9th July 1992, the Plaintiff by his Attor-ney-at-Law gave the Defendant notice to quit the premises Nos. 65,63 1/1, 63 1/2 Jayantha Weerasekea Mawatha, Colombo 10, on orbefore 31st August 1992.
The contention was that in paragraph 9 of the plaint in Sinhalathere was no reference whatsoever to premises bearing assessmentNo. 71. The omission to refer to premises No. 71 in paragraph 9 ofthe Sinhala copy of the plaint filed of record was discovered by theDistrict Judge on his own; it was not a matter which was raised be-fore the District Court by Counsel for the Defendant. The District Judge,however, in his order noted the fact that in the English copy of theplaint filed of record paragraph 9 refers to premises bearing assess-ment No. 71 as well. The Court of Appeal took the view that therewas no provision in law for the District Judge to refer to the Englishcopy of the plaint to supplement the omission in the plaint in Sinhala.
Mr. Premadasa for the Plaintiff Appellant submitted that on a read-ing of the entirety of the plaint in Sinhala it is clear that the omissionin paragraph 9 to refer to premises bearing assessment No. 71 isonly a typographical error. With this submission I agree. Paragraph 2of the plaint avers that the Plaintiff let to the Defendant and the De-fendant took on rent from the Plaintiff on terms of a monthly tenancypremises Nos. 65, 63 1/1, 63 1/2 and 71 Jayantha WeerasekeraMawatha, Colombo 10. In paragraph 3 of the plaint it is averred, Interalia, that premises bearing assessment No. 71 is more fully describedin the 3rd schedule to the plaint. In paragraph 7 it is averred thatpremises No. 71 are excepted premises, in terms of regulation 3 ofthe schedule to the Rent Act. Paragraph 10 of the plaint further aversthat a cause of action has accrued to the Plaintiff to sue the Defend-ant for ejectment from premises bearing assessment No. 71. In para-graph (c) of the prayer to the plaint the Plaintiff prays for ejectment ofthe Defendant from premises No. 71. It is thus manifest on a carefulreading of the plaint in Sinhala as a whole that the omission to referto premises No. 71 in paragraph 9 is no more than a typographicalerror.
More importantly, the Court of Appeal has overlooked the factthat with the statement of objections filed on behalf of the Plaintiffthe copy of the notice to quit served on the Defendant was producedmarked “A”. At the hearing before us, Mr. Rohan Sahabandu for theDefendant Respondent very properly did not challenge the receipt ofthe notice to quit. (At the trial, the notice to quit was not marked asthe leading of evidence had not commenced). Now, the notice to quitrefers not only to premises Nos. 65,631/1,631/2 but also to premisesbearing assessment No. 71, Jayantha Weerasekera Mawatha, Co-lombo 10. If the Cout of Appeal had considered the terms of the no-tice to quit then it would have been clear beyond doubt firstly, that thetenancy in respect of premises No. 71, has been terminated and sec-ondly, that the omission to refer to premises No. 71 in paragraph 9was merely a typographical error and nothing turns upon that omis-sion. Reference to the English copy of the plaint would merely con-firm, if confirmation was necessary, the conclusion arrived at by ascrutiny of all the averments in the plaint in Sinhala. In this view ofthe matter, the Court of Appeal was in error in holding that, “… whenthe Respondent sought to eject the petitioner from premises No. 71as prayed for in paragraph 11 (c) of the plaint without first terminatingthe tenancy in respect of the premises, there has been a misjoinderof causes of action."
What I have stated above is sufficient to dispose of the appeal,but I would like to make the observation that section 36 of the CivilProcedure Code permits the Plaintiff to unite several causes of ac-tion against the same Defendant. (In this case there was only oneDefendant) “There is … no obfection to the Plaintiff uniting in oneaction several different causes of action against the same Defendantin accordance with section 36 of our code …” per A. L. S. SirimanneJ., in Morais v. Victoria.™ In any event, a Court cannot dismiss anaction merely on the ground of misjoinder of causes of action. DingiriAppuhamy v. Pagnananda Thero.(2)
For these reasons, the appeal is allowed, the judgment of theCourt of Appeal is set aside and the order of the District Court dated25.11.94 is restored. The Defendant-Respondent must pay the Plain-tiff-Appellant a sum Rs. 1000/- as costs of appeal.
RAMANATHAN, J. – I agree.
WIJETUNGA, J. – I agree.
AMEER V. KULATUNGE