017-NLR-NLR-V-45-MUTTUMENIKA-Appellant-and-SUDUMENIKA-Respondent.pdf
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Muttumenika and Sudumenika.
1943Present : Jayetileke J.
MUTTUMENIKA, Appellant, and SUDUMENIKA, Respondent.
41—G. R. Badulla, 10,697.
Joinder of causes of action—Action for land—Recovery of* value of goods—Sametransaction—Power ofCourttostrike outcause of action—Civil
Procedure Code, ss. 35,93 and 805.
Plaintiff sued the defendants cn two causes of action—
that acting in concert they unlawfully broke open the door of her
house and removed articles of a certain value;
that onalaterdatetheytook forcible possession ofthe house
andlandinwhichshe livedand reapedthe paddycultivated
by her on a portion of the land.
Plaintiff claimed a declaration of title to the land and damages.
Held, that the joinder of the two causes of action was obnoxious to theprovisions of section 35 of the Civil Procedure Code.
Held, further, that the plaint did not come within the purview ofsection 805 of the Civil Procedure Code.
Heldalso,thatthepowergiventoa Court toamend theplaint by
striking out a cause of action should as a rule be exercised in the originalCourt on an application made after notice to the defendant.
^y^PPEAIi from a judgment of the Commissioner of Requests, Badulla
J.M. Jayamanne (with him Herat), for defendants, appellant.
M. Kumarasinghe, for plaintiff, respondent.
Cur. adv. vult.
JAI'ETUjEKE J.—Muttumenika and Sudumenika.
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December 7, 1943. Jayetxleke J.—
The plaintiff brought this action against the defendants on two distinctand separate causes of action. She stated in her plaint that on December16, 1940, the defendants acting in concert unlawfully broke open the doorof her house and removed articles of the value of Its. 40, and that onDecember 30, 1940, they took forcible possession of the house and landin which she lived and reaped the paddy cultivated by her on a portion ofthe land of the value of Us. 20.
She claimed a declaration of title to the land, Its. 20 as damages con-sequent on the ouster, and Rs. 40 being the value of the articles removedby the defendants.
The defendants pleaded that under section 35 of the Civil ProcedureCode the two causes of action could not be combined and that the actionshould therefore be dismissed.
There can be no doubt that the joinder of the two causes of action isobnoxious to the provisions of section 35 of the Civil Procedure Code.The plaintiff sought to justify the joinder under section 805 of the CivilProcedure Code which is applicable to an action instituted in the Court ofRequests. It reads:—“ The plaintiff may unite in the same plainttwo or more causes of action when they all arise (1) out of the sametransaction or transactions connected with the same subject of action;
out of contract express or implied ”. But it must appear on the faceof the plaint that all the causes of action so united are consistent witheach other, that they entitle the plaintiff for the same kind of relief andthat they affect all the parties.
An examination of the plaint shows that section 805 cannot possiblyhelp the plaintiff. In the first place the causes of action do not ariseout of the same transaction and, in the next, they do not entitle theplaintiff to the same kind of relief.
The questionnowariseswhat shouldbe donein view of the defect
I have alludedto.Thereis no provision in theCivil Procedure Code
for striking outa cause ofaction whichhas beenimproperly joined, but
section 93 givestheCourtthe power toallow theplaint to be amended.
In Alagamma v. Mohamadu 1 de Sampayo J. said-—
“ Even if the action be regarded as joining two distinct causes ofaction, it does not follow that the action, as far as the fourth plaintiffis concerned, should necessarily be dismissed. Section 17 of the Codeis one of a number of sections concerned with the framing of anaction, and it is obvious from the whole set of provisions that theintention of the Code is not to make technical defects wholly to defeatan action but to facilitate the correcting of such defects in orderthat the Court may once for all adjudicate on the merits of the case.Section 93 gives to the Court wide powers of amendment, and I thinkthe District Judge should have exercised those powers in this ease 1
1 4 C. W. R. 73
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Elllawalla and Inspector of Police.
The proceedings do not show that any application was made by theplaintiff at any stage to amend the plaint. That may be due to the factthat the learned Commissioner was of opinion that there was no defectin the plaint.
Counsel for the plaintiff asks me for permission to amend the plaint bystriking out the first cause of action.
In Mohummud Zahoor Ali Khan v. Mussumat Thakooranee ButtaKoer 1 an application for amendment was allowed in the most advancedstage before their Lordships of the Privy Council. Though the power ofamendment conferred by section 93 is vested both in the original as wellas in the appellate Court, I do not think I should exercise that powerwithout a proper application and without giving the defendants an•opportunity of showing cause.
I can, however, see no objection to the plaintiff being given an oppor-tunity of making an application to the Court below with notice to thedefendants.
I would set aside the judgment appealed from and send the case backto the Court below for the consideration of an application by the plaintiffto amend her plaint by deleting her claim for Rs. 40. If no such applica-tion is made within fourteen days of the receipt of this record in the Courtbelow, the action will be dismissed with costs.
If an application is made and it is allowed, judgment will be enteredfor the plaintiff as prayed for in paras (a) and(b) of her plaint and Rs. 20as damages. The appellant will be entitled to the costs of appeal but allcosts in the Court below will be in the discretion of the Commissioner.
Set aside.
Case remitted.