EDIRISINGHE v. WIMALAWARDANE AND ANOTHER

046-SLLR-SLLR-2002-3-EDIRISINGHE-v.-WIMALAWARDANE-AND-ANOTHER.pdf


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Edirisinghe v. Wimalawardane and Another
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EDIRISINGHE
v.WIMALAWARDANE AND ANOTHER
COURT OF APPEALAMARATUNGA, J. ANDBALAPATABENDI, J.
CALA NO. 186/02DC COLOMBO NO. 19046/LAUGUST 15 AND 16, 2002
Civil Procedure Code, section 35 (1) – Leave of court sought to join 2nd causeof action with 1st cause of action – Refusal on the ground of belatedness.
Held:
The object of the Civil Procedure Code is to prevent civil proceedings frombeing frustrated by any kind of irregularity or lapse which has not causedprejudice or harm to a party.
The two claims urged by the petitioner in the plaint could be tried in lawin the same action under section 35 (1) to avoid a multiplicity of actions.
The application even belated, would not cause grave prejudice to therespondents if the application was allowed.
"Rules of procedure have been designed and formulated to facilitate dueadministration of justice".
APPLICATION for. leave to appeal from the order of the District Court of'Colombo.
Cases referred to :
Distilleries Co., Ltd. v. Kariyawasam – (2001)3 Sri LR 119.
Velupillai v. The Chairman, District Council of Jaffna – 39 NLR 464.
Appuhamy v. Dionis – 12 NIR 382.
Ranjan Suwandaratne for petitioner.
S. Mithakrishnam for 2nd defendant-respondent.
Cur. adv. vult.
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November 29, 2002BALAPATABENDI, J.
The plaintiff-petitioner (hereinafter referred to as the petitioner) by oithe plaint dated 17. 10. 2000 instituted an action in the District Courton two causes of action and prayed in the prayer :
for a declaration of title to the land morefully described inthe Schedule to the plaint, and
for a declaration that the 1st and 2nd defendant-respondents(hereinafter referred to as respondents) do not get any right,title or interest to the land (referred to in the Schedule tothe plaint) by virtue of deed of declaration bearing No. 95and / or by the transfer deed No. 11846.
In paragraph 13 of the plaint and in paragraph 3 of the prayer «>to the plaint the petitioner had urged and sought leave of court tojoin the 2nd cause of action / claim with the 1st cause of action /claim in the same action under the provisions of section 35 (1) ofthe Civil Procedure Code.
On 29. 01. 2001 the 2nd defendant-respondent and on 13. 03.2002 the 1st defendant-respondent had filed their answers.
In their answers they have inter alia denied paragraph 13 of theplaint, and also averred that as the plaintiff had failed to obtain leaveof court under the provisions of section 35 (1) of the Civil ProcedureCode to join the two claims in the same action, the two causes of 20action mentioned in the plaint were misconceived in law, andtherefore, the plaint should be dismissed.
The petitioner had filed the replication also inter alia praying againto seek leave of court to join both claims in the same action.
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When the case was called to fix for trial on 10. 05. 2002, thecounsel for the petitioner made an application to court, to obtain leave,to join the two claims in the same action under the provisions ofsection 35 (1) of the Civil Procedure Code, to which the respondents
objected on the basis that, the application of the petitionerwas belated.
The learned District Judge after hearing both sides, refused andrejected the application of the petitioner on 10. 05. 2002. This appealwas preferred against that order.
Section 35 (1) of the Civil Procedure Code states that: "In an actionfor the recovery of immovable property, or to obtain a declaration oftitle to immovable property, no other claim, or any cause of action,shall be made unless with the leave of the court, except –
claims in respect of mesne profits or arrears of rent in respectof the property claimed;
damages for breach of any contract under which the propertyor 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.
According to the above-mentioned section 35 (1) it is apparent that,in an action for recovery of immovable property or to obtain a declarationof title to an immovable property, the leave of court should be obtained,to join the second cause of action or claim, except claims mentionedin subsections (a), (b) and (c) of the provisions of section 35 (1).
In the answers filed by the 1st and 2nd respondents, it is manifestthat the respondents while denying the title of the petitioner to theland in dispute, they have asserted prescriptive rights to the land.
The 1st respondent had executed a deed of declaration (deedNo. 95) on the prescriptive rights that he asserts to have acquired
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to the land and had transferred his rights, title and interest of thesaid land to the 2nd respondent by the deed of transfer No. 11846.
On a careful perusal of the answers of the respondents, it isobviously clear that, they have answered to both claims or causesof action disclosed, in the averments to the plaint.
The only objection taken by the respondents to the application ofthe petitioner made under the provisions of section 35 (1), was that,it was a belated application.
The point in issue to consider in this case was, whether theapplication made by the petitioner on the date the case was calledto fix for trial (even belated) would cause grave prejudice to therespondents, if the application was allowed?
As stated above, the respondents were confronted with both claimsor causes of action urged by the petitioner in the plaint and they hadanswered every averment in the plaint, and also stated their casein the answers filed. Also the two claims urged by the petitioner inthe plaint could be tried in law in the same action under the provisionsof section 35 (1) of the Civil Procedure Code, to avoid multiplicityof actions.
The object of civil procedure is to prevent civil proceedings frombeing frustrated by any kind of technical irregularity, or lapse whichhas not caused prejudice or harm to a party. (vide the decision ofDistilleries Co., Ltd. v. Kariyawasam(1)).
In the same case Nanayakkara, J. said that :
As Chief Justice Abraham remarked in the case of Velupillaiv. The Chairman, District Council Jaffna that "the Court of lawis a Court of Justice and it is not an academy of law should bealways uppermost in one's mind. The court should not approachthe task of interpretation of a provision of law with excessiveformalism and technicality. The Code of Civil Procedure provides
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a series of rules designed to facilitate the orderly and impartialconduct from the stage of drafting of the pleadings until thejudgment and execution of decree. Therefore, the rules ofprocedure have been designed and formulated to facilitate dueadministration of justice".
On a consideration of all the facts and circumstances of this case, 90I am of the view that the interests of justice demands that leave ofcourt should be granted, to join the two claims or causes of actionin the same plaint as filed by the petitioner.
No prejudice will be caused to the respondents, even though theapplication made under section 35 (1) by the petitioner was belated.
In Appuhamy v. Dionis Middleton, J. observed that : According tothe provisions of section 35 and the example thereto, the Judge, nodoubt, was strictly right, but the provisions of our Code to be foundin section 46 show that the presentment of a plaint is subject to theapproval of the Judge, and his reception of the plaint in this case 100was tacit waiver of the terms of section 35. It seems to me, therefore,that it was a case in which the Judge might well have exercised hisdiscretion, and have made the order requisite under section 35 ata later period in the action. I think, therefore, that we, on the groundsgiven by my lord of convenience and for the avoidance of themultiplicity of actions, should now make the order which the Judgedeclined to make.
For the aforesaid reasons, I set aside the order made by the learnedDistrict Judge on 10. 05. 2002, and direct the learned District Judgeto permit the plaintiff-petitioner to proceed on both causes of action 120and consider both reliefs claimed under section 35 (1) of the CivilProcedure Code in the plaint already filed.
The appeal is allowed. No costs.
AMARATUNGA, J. – I agree.
Application allowed.