FERNANDO v. LAKSHMAN PERERA

040-SLLR-SLLR-2000-V-2-FERNANDO-v.-LAKSHMAN-PERERA.pdf


FERNANDO
LAKSHMAN PERERA
COURT OF APPEALJAYASINGHE. J.
JAYAWICKREMA, J.
A. No. 786/97
C. MORATUWA 172/L9™ JUNE. 2000
20™. 3 1st OCTOBER 2000
Civil Procedure Code – S.35(l). S.46 – Leave of Court not obtained ■Misjoinder of causes ofaction – Interim Injunction refused – Non compliancewith imperative requirements – Is it total?
The District Court refused the interim injunction sought by the PlaintiffPetitioner on the basis that there is a misjoinder of causes of action -S.35{1).
It was contended that, as the Plaintiff Petitioner sought declaration notonly that he is entitled to the land but also further declaration inter aliato invalidate two Deeds, it violated the provisions of S.35(l) CivilProcedure Code as in an action instituted in terms of S.35, no other claimor cause of action shall be made unless with the leave of court, except incases enumerated therein.
Held :
The Plaint gives full details regarding the conduct of the Respond-ents to deprive the Plaintiffs right to own and possess the subjectmatter of the action.
The Plaintiff pleads in paragraph 17 that a cause of action hasarisen to evict the Defendant and place the Plaintiff in possessionof the land.
There is only one cause of action. The prayer for invalidation of thetwo deeds is consequential to prevent the Respondents fromalienating the land.
It is wrong to prevent the alleged actions of the Defendants and toinvalidate any illegal transfers or alienation.
APPLICATION in Revision from the order of the District Court ofMoratuwa.
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Cases referred to :
Appuhamy u. Diyonis – 12 NLR 382
Raman Chetty v. Carpan Kangany – 1 SLR 242
Fernando v. Wass – 9 SCC 189
Thimmalay u. Kulandavelu – 66 NLR 285
Fernando v. Fernando – 39 NLR 145
Shiba u. Prayas – 59 C 1399 -A 1932 PC 213
Canesh v. Jewach – 8 CWN 146
Giyana v. Kandasamy – 10 M 375
New M Co. v. Shankar – A 1941 B 247
Sachi v. Rajchand – A 1950 C 333
Chiddabaram v. Ramasami – 5 M 161
Lloyd v. G.W&M.DCo. – 1907 – 23 TR 570
Satish v. Ashrafuddin – 8 CLJ 198
Adlin Fernando v. Lionel Fernando – 1995 2 SLR 25
Manohara R. de Silva with Devika Samaranayake for Plaintiff Petitioner.P.A.D. Samarasekare P.C., for Defendant Respondents.
Cur. adv. uult
December 05, 1999.
JAYAWICKRAMA, J.This is an application to revise, set aside or vacate theorder dated 27.08.1997 made by the learned District Judge ofMoratuwa refusing the interim injunction sought by thePlaintiff-Petitioner on the basis that there is a misjoinder ofcauses of action within the meaning of Section 35( 1) of the CivilProcedure Code.
On an application made by the Plaintiff-Petitioner, thelearned District Judge on 14.12.1995 issued an enjoiningorder preventing the 2nd Respondent from alienating thepremises described in the second schedule to the plaint.
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Thereafter the learned District Judge by his order dated
vacated the enjoining order and refused to issuean interim injunction as prayed for by the Plaintiff-Petitioner.The learned District Judge in making the order has come to theconclusion that due to misjoinder of causes of action thePlaintiff cannot succeed in his action. There are no otherreasons stated for the refusal of the interim injunction by thelearned District Judge.
The learned President’s Counsel for the 2nd Defendant-Respondent submitted that in an action instituted in terms ofSection 35, no other claim or cause of action shall be madeunless with the leave of Court, except in the cases enumeratedtherein and the Section itself is worded in imperative terms. Hecontended that to obtain a declaration of title in his favour inrespect of the subject matter of the action, the Plaintiff-Petitioner ought to clear two more hurdles in that the notarialdocuments bearing Nos. 51 and 3054, will have to be set asideby Court and the degree of success to be derived by thePlaintiff-Petitioner is dependant on the other claims or decla-rations sought. He further submitted that the remedy of aninjunction being an extraordinary relief granted in exceptionalcircumstances, when all ingredients have been strictly com-plied with, non compliance with the imperative requirement ofseeking leave or the observance in breach of such provision, nodoubt create an obstacle in the way of Court granting relief.The learned President’s Counsel further submitted that thePlaintiff-Petitioner sought a declaration not only that he isentitled to the land morefully described in the second scheduleto the plaint but also further declaration inter alia to invalidatedeed No. 3054 dated 20. 05. 1993 and Agreement to sellbearing No. 51 dated 07. 03. 1995.
The plaint of the Plaintiff dated 13. 12. 1995 gives fulldetails regarding the conduct of the Respondents to deprivethe Plaintiff s right to own and possess the subject matter ofthis action. In paragraph 17 of the plaint he states that a causeof action has arisen to evict the Defendant and place the
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Plaintiff in possession of the land. On a perusal of this plaintI find that there is only one cause of action as per Paragraph17 of the plaint. The prayer for invalidation of two deedsreferred to above is consequential to the main cause of actionto obtain declaration of title to this land. For this purpose it isnecessary to prevent the 1st and the 2n<l Respondents fromalienating the land by way of transferring, selling, agreeing tosell and mortgaging the said land. Under Section 35(l)(b) of theCivil Procedure Code the Plaintiff in an action for declarationof title to immovable property is entitled to make a claim fordamages for breach of any contract under which the propertyor any part thereof is held; or consequential on the trespasswhich constitute the cause of action. In the instant casethe claim to invalidate the deed and agreement itself isconsequential to the main cause of action to obtain adeclaration of title. It is necessary to prevent the allegedactions of the Defendant and to invalidate any illegal transfersor alienations. It is abundantly clear on a reading of the plaintwhich states in minute detail the alleged conduct of theDefendant to alienate the property which is the subject matterof this action, that the only cause of action is to obtain adeclaration of title and possession of the subject matter.
It was held in Appuhamy us. Diyonis1,1 that in an action bya lessee of land for recovery of possession and damagesagainst a person who has ejected him from the land, theJudge has power, even after the filing of the plaint, to grantspecial leave to join an alternative claim against the lessorfor damages and for the refund of purchase money.
It was held in Ramen Chetty vs. Carpan Kangany121 that theaction can be sustained under the exception mentioned inSection 34 of the Code, and the words in the section“except with leave of the Court obtained before thehearing”, mean that if a Plaintiff has omitted a part of hisclaim, he may, before that claim is heard, ask the leave ofCourt to sue for the omitted remedy.
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In Fernando us. Wassl3> it was held that a claim to recoverland from a party in wrongful possession may be joinedwith an alternative claim against the vendor of the land tothe Plaintiff for refund of the price upon failure to warrantand defend the title.
Subject to the provisions of Section 35 of the Code, thePlaintiff may unite in the same action several causes of actionagainst the same Defendant or Defendants jointly. AnyPlaintiff having a cause of action in which they are jointlyinterested against the same Defendant or Defendants mayunite such cause of action in the same action. However, if theCourt thinks that they cannot be conveniently disposedof together, the Court may, on its own motion or on theapplication of any Defendant, order separate trials of any suchcause of action.
It was held in Thirumalay v. Kulandavelu141 that althoughit is permissible for a Plaintiff to unite in the same actionseveral causes of action, there is no provision in the Code forpleading causes of action in the alternative. Therefore, theCourt has no power to amend a plaint by adding alternativecause of action. (Vide Fernando v. Fernando15*).
In India, according to the corresponding section in theCivil Procedure Code, where in such a suit, it is sought to joinclaims other than those specified in the three clauses. (R.4).leave of the Court must first be obtained; and leave may beobtained if the claim is of such a nature that it can beconveniently tried with a suit for recovery of immovableproperty.
The R.4 of the Indian Civil Procedure Code which is similarto our Section 35 is as follows
“No cause of action shall, unless with the leave of the Courtbe joined with a suit for the recovery of immovable property,except:-
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claims for mesne profits or arrears of rent in respectof the property claimed or any part thereof: and
claims for damages for breach of any contract underwhich the property or any part thereof is held; and
claims in which the relief sought is based on the samecauses of action:
Provided that nothing in this rule shall be deemed toprevent any party in a suit for foreclosure or redemption fromasking to be put into possession of the mortgaged property.
No leave is necessary when the claims in a suit for recoveryof immovable property are based on the same cause of action.(Vide Shiba us. Prayag167). Examples where no leave isnecessary are as follows: –
when a person seeks to recover both immovable andmovable property by setting up the same title basedon the same cause of action (Gunesh vs. Jewach171:Giyana vs. Kandasami187).
when a suit for recovery of land claims such asdeclaration of title, receiver, injunction, account ofrents or other claims not founded on any newcause of action are made. The joinder of specificperformance possession is not dependent upon theleave of Court (Netn M Co. vs. Shankar797).
Suit for specific performance and damages for delay incompletion of sale (Sachi vs. Raichand1'07).
Claims for damages and claims for mesne profit areregarded as distinct and separate causes of action from thecause of action for recovery of immovable property, and r.4says that they may be joined together, whereas otherwise theycould not be joined together because of the general principlecontained in the opening words r.4 (Sarkar's Law of Civil
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Procedure 8th EkHtion 1996page 554 to 556). The Rule does notforbid the joinder of several causes of action entitling thePlaintiff to recover several immovable properties, but a joinderwith such causes of action of other causes of action of adifferent character except in the cases specified in the clauses[Chiddabaram vs. Ramasamf11).
Under the English Rule leave is not conditional precedentto jurisdiction and it may in good cause be granted even afterinstitution of suit. (LLoyd vs. GW & MD Co.,,2!). As the Ruleregarding leave is for the benefit of the Defendant; he may byhis conduct waive it. There being no objection until the trial,the objection as to leave was held waived (Satish vs.Ashrufuddin1131).
It was held in Adlin Fernando vs. Lionel Femandd,4> thatprovisions of the Civil Procedure Code relating to the joinderof causes of action and parties are rules of procedure andNOT substantive law. Courts should adopt common senseapproach in deciding question of misjoinder or non-joinder.
In view of the above principles of law I am unable to agreewith the contention of the learned President’s Counsel for the2nd Defendant-Respondent.
In Appuhamy os. Diyonis(Supra) 384 Middleton, J.observed –
“According to the provisions of Section 35 and the examplethereto, 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 waiverof the terms of Section 35. It seems to me, therefore, that it wasa case in which the Judge might well have exercised hisdiscretion, and have made the order requisite under Section35 at a later period in the action”.