Maseena v Sahud and Another
SAHUD AND ANOTHERCOURT OF APPEALAMARATUNGA, J.BALAPATABENDI, J.CALA 184/2002D.C. GAMPOLA L/2765NOVEMBER 26, 2002
Civil Procedure Code – S. 11, S.35(1), S. 40, Amendment 9 of 1991 – S. 4,S. 42, S. 43, S. 46(2), S. 80, S. 93(2) – Misjoinder of Parties – Court returningplaint for amendment – ex mero motu – Is it legal ?- Position after the amend-ment 9 of 1991 – First date of trial.
The 1st plaintiff-respondent divorced his wife the defendant-petitioner andthereafter he and the 2nd plaintiff-respondent – Lessee – instituted actionagainst the defendant-petitioner. The 1st plaintiff-respondent sought a decla-ration to the property in question and the eviction of the defendant-petitioner,his former wife, and also sought a declaration that the 2nd plaintiff – respon-dent is the Lessee.
Of the issues raised by the defendant four issues were tried as preliminaryissues.
The trial court in answering the preliminary issue 12 – held that the action is notproperly constituted and it is contrary to section 35(1) and that there is mis-joinder of parties and returned the plaint for amendment under section 46(2).
The defendant-petitioner sought leave to appeal against the order.
The trial Judge has failed to take into account section 93(2) of Act 9 of1991.
The amendment has taken away the power of court to amend plead-ings ex mero motu. An amendment could be allowed only upon theapplication of a party when that party satisfies two conditions in section93(2). In this case there was no such application.
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Per Gamini Amaratunga, J.
“The Judge has held that the action is not properly constituted and thatthere is a misjoinder of parties then no further amendments of the plaintshould have been allowed."
APPLICATION for leave to appeal from the order of the District Court ofGampola.
Cases referred to :
Divisional Forest Officer v Sirisena 1990 1 SRI LR 44 at 49 and 50
Gunasekera and another v Abdul Latiff 1995 1 SRI LR 225
Ceylon Insurance Company Ltd. v Nanayakkara and another 1999 3 SRILR 50
J.C. Weliamuna for defendant-petitionerManohara de Silva for plaintiff-respondent.
April 28, 2003
GAMINI AMARATUNGA, J.This is an application for leave to appeal against the ordermade by the learned Additional District Judge of Gampola dated
returning the plaint to the plaintiffs’ for amendment. Thefacts leading to the said order are as follows: The 1st plaintiff whowas the husband of the petitioner has obtained a divorce againstthe petitioner. By his plaint dated 26.10.1998 (filed on 02.11.1998)he has averred that he is the owner of the property described in thefirst schedule to the plaint and the second plaintiff is the lessee ofthe said property. According to the plaint even after the 1st plaintiffdivorced the petitioner the latter has continued to occupy the housesituated in that property. The plaintiff has averred that after thedivorce the petitioner has no right to the property. He accordinglyhas prayed for a declaration that he is the owner of the propertyand the 2nd plaintiff is the lessee of that property and for an orderejecting the petitioner from that property.
Further the plaintiffs have averred that there were items ofmovable property worth more than Rs. 10,00000/- belonging to the1st plaintiff stored in the rooms of the house occupied by the peti-tioner. A list of the said movable items is given in the second sched-
Maseena v Sahud and Another
(Gamini Amaratunga, J.)
ule to the plaint. The plaintiffs have prayed for a declaration thatthose items of movable property belong to the 1 st plaintiff and thathe is entitled to take possession of those items and for an orderdeclaring that the 1st plaintiff is entitled to get possession of thoseitems from the petitioner. The plaintiffs have also sought an enjoin-ing order and an interim injunction preventing the petitioner fromdisposing such property or causing damage to the house or theitems movable property. The Court has issued the enjoining orderand notice of injunction as prayed for.
When the petitioner appeared in Court and filed her objectionsthe Court has made order on 15.6.1999 dissolving the enjoiningorder. On 07.10.1999 the plaintiffs have filed an amended plaintdropping the relief claimed in respect of the items of movable prop-erty and claiming the same relief claimed in the original plaint inrespect of the immovable property. Thereafter an application hasbeen made to amend the schedule to the amended plaint by sub-stituting the words ‘assessment No. 18’ for the words ‘18 perches’.Despite the objections raised on behalf of the defendant-petitioner,the trial Judge has allowed the amendment on the basis that theerror sought to be rectified was a typing error.
On 14.9.2001 the case was taken up for trial and both partieshave raised their issues and the defendant-petitioner has movedthat issues 10 to 13 raised on her behalf be tried first as preliminaryissues of law. The learned Judge without making an order on theapplication of the defendant has merely noted the application andhas directed the parlies to file written submissions. The next datefixed for trial was 30.4.2002. The journal entry of that date is soillegible and it is not possible to ascertain what happened on thatdate. However since the learned Judge has later pronounced hisorder on the defendant’s application to try issues Nos. 10, 11, 12and 13 as preliminary issues one may presume that on 30.4.2002the court decided to make an order on the defendants application.
Issues Nos. 10, 11, 12 and 13 raised by the defendant are as fol-lows:
No.10 According to law, can the plaintiff maintain this action?
No.11 Is the action misconceived in law?
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No.12 Is there a misjoinder of parties?
No.13 Has the action been filed in contravention of sections 35(1)and /or 40 and /or 42 and /or 43 of the Civil ProcedureCode?
The learned Judge in his order has proceeded to consider 60 o<those issues. He has considered issue No. 10 and 12 together. Bythe plaint the plaintiffs have sought declarations that the 1st plain-tiff is the owner of the property and the 2nd plaintiff is the lessee ofthe property. It is clear that this case is an action for declaration oftitle to immovable property and for the recovery of immovableproperty. According to section 35 of the Civil Procedure Code insuch an action “no other claim or any cause of action shall be madeunless with the leave of Court, except –
claims in respect of mesne profits or arrears of rent in respect
of the property claimed;70 (
damages for breach of any contract under which the proper-ty or any part thereof is held; or consequential on the trespasswhich constitutes the cause of action; and
claims by a mortgagee to enforce any of his remedies underthe mortgage.
It is clear from this section that in an action for declaration oftitle to immovable property it is not possible to seek, without theleave of Court, a declaration that a party, other than the partyclaiming declaration of title is a lessee. The plaintiffs have notobtained leave of the court to join those two different claims in the so
same action. According to section 11 of the Civil Procedure Code"All persons may be joined as plaintiffs in whom the right to anyrelief claimed is alleged to exist, whether jointly severally or in thealternative in respect of the same cause of action. It is clear thatthe two plaintiffs are not persons in whom the right to any reliefin respect of the same cause of action jointly existed. In these cir-cumstances the learned Judge has quite rightly held that theplaintiff’s action is not properly constituted as it is contrary to sec-tion 35(1) of the Civil Procedure Code and that there is misjoin-
der of parties.
Maseena v Saheed and another (Gamini Amaratunga, J.)
In respect of issue No. 11 the learned Judge has held that theplaint discloses a cause of action and in respect of issue No.13 hehas held that in view of his decision that the plaint is bad in law asit has contravened section 35 of the Civil Procedure Code, it wasnot necessary to consider matters raised in issue No. 13.
Thereafter the learned Judge has decided to return the plaintfor amendment. For this decision he has relied on the provisions ofsection 46(2) of the Civil Procedure Code which reads as follows:
“Before the plaintIs allowed to be filed,-the Court may, if in
its discretion it shall think fit, refuse, to entertain the same for 100any of the following reasons.”
The reason applicable to the present case is paragraph (f)of section 46(2). Paragraph (f) is as follows:
“if it is wrongly framed by reason of non joinder or misjoin-der of parties or because the plaintiff has joined causes ofaction which ought not to be joined in the same action, andmay return the same for amendment then and there or with-in such time as may be fixed by Court upon such terms asto costs…”
According to section 46(2) a Court may return the plaint for 110amendment “before the plaint is allowed to be filed.” The learnedJudge having noted that the point of time envisaged by section46(2) has passed, has proceeded to consider whether the Courthas the power to return the plaint for amendment at any subse-quent stage. The learned Judge having considered the observa-tions of Wijetunga, J. in Divisional Forest Officer v Sirisena C) hasdecided that it is open to the Court to return a plaint for amendmenteven after the stage envisaged in section 46(2). However thelearned Judge has failed to take into account the difference in thelegal position that existed on the date of that judgment i.e, 12025/8/1989 and the present legal position. After section 93 of theCivil Procedure Code was amended by section 2 of Act, No. 9 of1991 the position is different. Section 93(2) of the Civil ProcedureCode as it presently stands after the said amendment reads as fol-lows:
“On or after the day first fixed for trial of the action and
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before the final judgment no application for the amendmentof any pleadings shall be allowed unless the court is satis-fied, for the reasons to be recorded by the court that graveand irremediable injustice will be caused if such amendment 130is"not permitted, and on no other ground, and that the partyso applying has not been guilty of laches.”
The effect of this section was explained by Ranaraja, J. inGunasekera and another v Abdul Latiff <2). According to that judg-ment the amendment introduced by Act, No. 9 of 1991 has takenaway the power of court to amend the pleadings ex mere motu. Anamendment could be allowed only upon the application of a party.
In this case there was no application by the plaintiff to amend theplaint. The court ex mere motu decided that the answer should beamended. Under the present law the court has no power to do this, uo
In this case the day first fixed for trial was 4/9/2001. Themeaning of the phrase ‘the day first fixed for trial’ was explained inCeylon Insurance Company Limited v Nanayakkara and anoth-er<3). It was stated in that case that “section 80 of the CivilProcedure Code provided for fixing the date of trial and such dateconstitutes, the day first fixed for trial.” Therefore any amendmentto pleadings in this case after 4/9/2001 will have to be done on theapplication of a party and only when the court is satisfied that thetwo conditions set out in section 93(2) are present.
In this case having decided that the plaintiff’s action is not 150properly constituted as it is not in conformity with section 35(2) andthat there is misjoinder of parties, the learned Judge has stated thathe refuse the application of the defendant to take up issues No. 10,
11, 12 and 13 first. Since the learned Judge has already decidedissues No. 10 and 12 against the plaintiff and issue No. 11 in favourof the plaintiff’s I cannot understand the logic of the Judge’s refusalto try issues No. 10-13 before other issues are tried. The Judge hasalready recorded his conclusions regarding those issues. His deci-sion to return the plaint for amendment is wrong in law and accord-ingly I allow the appeal and set aside that part of the order dated 1606/5/2002 directing the return of the plaint for amendment. Theplaintiff has already filed his amended plaint as directed by thelearned Judge. Since the order permitting the plaintiff to file amend-
Maseena v Saheed and another (Gamini Amaratunga, J.)
ed answer has been set aside, the amended plaint dated 3/6/2002is also hereby rejected.
The plaintiff has amended the original plaint by filing anamended plaint. Thereafter he has amended the amended plaint byamending the schedule to the plaint. After the trial process com-menced and the issues have been framed, the learned Judge hascome to the conclusion that the plaintiff’s action is not properly con- 170stituted and that there is misjoinder of parties. After the Judge hascome to this conclusion for reasons stated, no further amendmentsof the plaint should have been allowed. I therefore direct thelearned Judge to formally record his answers to issues No. 10, 11,
12 and 13 in accordance with the conclusions set out in his orderdated 6/5/2002 and thereafter make an appropriate order regardingthis case in accordance with the recorded answers to issues No.
10, 11, 12 and 13. The defendant-appellant is entitled to costs ofthis appeal in a sum of Rs. 15,000/-
BALAPATADENDI, J.I agree
. Trial Judge is directed to formally record his answers to the prelim-inary issues in accordance with the conclusions set out in theimpugned order and thereafter make an appropriate order.
MASSENA v. SAHUD AND ANOTHER