092-NLR-NLR-V-12-APPUHAMY-et-al.-DIONIS-et-al.pdf
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1909.
December 2.
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Middleton.
APPUHAMY et al. v. DIONIS et at.
*' D. C., Kurunegala, 3,422.
Action by lessee against trespasser for ejectment and damages—Alternativeprayer against the lessor for damages—Civil Procedure Code, ss. 55and 46.
In an action in a District Court by a lessee of land for-recoveryof possession and damages against a person who has ejected himfrom the land, the Judge has power, even after the filing of theplaint, to grant special leave to join an alternative claim againstthe lessor for damages and for the refund of purchase money.
Hutchinson C.J.—It seems convenient that the lessee shouldbe allowed to join in the same action a claim against the lessorfor damages in case he does not defend the title.
A
PPEAL from a judgment of the Distriot Judge of Kurunegala(C. S. Vaughan, Esq.).
The plaintiffs, who were third defendant’s lessees, were ejected bythe first and second defendants from the leased premises. There-upon the plaintiffs instituted this action, and prayed—
“ (1) That the first and second defendants be ejected from thesaid land, and the plaintiffs be restored to possession.
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“ (2) For damages against the defendants, jointly and severally, 1999.at the rate of Rs. 75 per mensem from May 21, 1908, December 9.until the plaintiffs are restored to possession; or in thealternative—
“ (a) That the said lease be cancelled.
“ (b) That the Court do order the third defendant to refundthe said sum of Rs. 500 to the plaintiffs above named.”
On the date fixed for 'trial the third defendant raised the followingissues of law :— .
Does the plaint disclose a cause of action against the third
defendant, in view of the fact that plaintiffs admit thatpossession of the land was given to them ?
Can plaintiffs maintain this action, in view of the fact that
no leave of Court was given to make an alternative claim,in addition to the prayer for possession, as required bysection 35, Civil Procedure Code ?
The District Judge held (1) that plaintiffs were entitled to jointhird defendant as a party ; (2) that leave should have been obtainedbefore institution of action to join the alternative prayer againsthim; that the Court had no power to give such leave at that stage•he ordered that the claim for damages and the alternative prayeragainst the third defendant be deleted.
The plaintiffs appealed.
Bawa (with him Wadsworth), for the plaintiffs, appellants.—Thelessor has. been made a party defendant for the purpose of enablinghim to warrant and defend his title. If the alternative olaimagainst him for damages be not joined, it may be res judicata.[Hutchinson C.J.—Can you join such a cause of action withoutleave ?] When the Court accepted the plaint, it had granted theleave; the acceptance is tantamount to the granting of the leave ;otherwise the Court must have rejected the plaint. [HutchinsonC. J.—If the acceptance of the plaint is tantamount to the grantingof leave, why should section 35, Civil Procedure. Code, enactthat “no other claim shall be made unless with the leave of theCourt ” ?]
Sampayo, K.C. (with him B. F. de Silva), for the respondent.—[Hutchinson C.J.—Why should not the Judge give leave in thiscase ?] Leave should have been obtained at the time of filing theplaint. It has been held in England that leave should be obtainedbefore summons (In re Pitcher, 11 Ch. Div. 905). Counsel alsoreferred to Lloyd v. Great Western Dairies Co.1
1 (1907) 2 K. B. 797.
190fi.
December
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December 2, 1909. Htjtohjcnson C.J.—.•
" -Where the plaintiff, a purchaser of land, sues a man who hasejected him, from the land to recover possession and damages fromhim, and joins as defendant bis vendor in order that the vendor maydefend his title, it seems convenient that he should be allowed tojoin in the same action a claim against the vendor for damages incase he does not defend the title. The plaintiffs in this case had notobtained special leave to join the claim for damages against theirlessor with the claim to recover possession. When this objectionwas brought to the notice of the Judge, I see no reason to doubtthat he had power to give the leave then, and that it would havebeen right for him to give it. The case of Fernando v. Woos1 is onewhich I think we ought to follow. I think, therefore, that the orderof the District Court must be set aside, and that leave be given tothe plaintiffs to join the claim against the third defendant as theyhave done in the plaint. We think the appellants should have theircosts of the appeal.
Middleton J.—
I agree. According to the provisions of section 35 and theexample thereto, the Judge, no doubt, was strictly right, but theprovisions of our Code to be found in section 46 show that thepresentment of a plaint is subject to the approval of the judge,and his reception of the plaint in this case was a tacit waiver of theterms of section 35. It seems to me, therefore, that it was a casein which the Judge might well have exercised his discretion, andhave made the order requisite under section 35 at a later periodin the action. I think, therefore, that we, on the grounds given bymy Lord of convenience and for the avoidance of the multiplicityof actions, should now make the order which the Judge declinedtp make.
Appeal (Mowed.
1 {1891) 9 S. C. C. 189.
H. C^AhOTTLE, GOVERNMENT PRINTER, COLOMBO, CEYLON.