(2) If a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of, his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. A person entitled to more than one remedy in respect of the same cause of action may sue for all or any of his remedies; but if he omits (except with the leave of the court obtained before the hearing) to sue for any of such remedies, he shall not afterwards sue for the remedy so omitted.
(3) For the purpose of this section, an obligation and a collateral security for its performance shall be deemed to constitute but one cause of action.
Illustration
A lets a house to B at a yearly rent of Rs. 1000. The rent for the whole of the two years 1886 and 1887 is due and unpaid. A sues B only for the rent due for one of those years. A shall not afterwards sue B for the rent due for the other year.
In C. R. Gampaha 1684, the plaintiff, alleging that he was entitled to possess certain rubber trees on a lease, complained of an ouster by the defendant and asked for damages sustained by him and continuing damages till date of judgment.
The defendant denied plaintiff’s right to the lease, which he said was void, but at the trial admitted the plaintiff’s claim and consented to pay damages.
In the present action the plaintiff alleged that the defendant had refused to give up possession of the land and claimed that he be placed and quieted in possession and that the defendant be ejected.
Held, that the present action was not barred by section 34 of the Civil Procedure Code.
Odirishamy Vs. Elaris (46 N.L.R. 68)
Where a tenant in arrears of rent for more than one month after it became due, as contemplated in section 13(1)(a) of the Rent Restriction Act, is given notice to quit and sued for arrears of rent only but not for ejectment, he cannot be subsequently sued for ejectment in a separate action based on the same notice to quit. In such a case section 34(1) of the Civil Procedure Code operates as a bar to the maintenance of the action for ejectment.
Ebhramjee Vs. Simon Singho (62 N.L.R. 261)
Section 34 of the Civil Procedure Code does not debar the institution of two separate actions on two different causes of action, even though the causes of action arise from the same transaction.
There is no fiduciary relationship between the partner who is the manager of the partnership funds of a business and another member of the partnership. Sections 90 and 111 of the Trusts Ordinance are not applicable in an action brought by the latter against the former for the recovery of his share of the capital of the partnership business.
Where a partnership agreement for the period 1st October 1948 to 30th September 1949 provided that the partners were to “receive or bear the profits or loss proportionately once in six months”
Held, that the institution of an action by one of the partners for the recovery of his share of the profits for the second half-year of the partnership business was not a bar to the institution of a subsequent action by him for his share of the capital of the partnership business. The provision of section 34 of the Civil Procedure Code could not prevent the plaintiff from maintaining the second action.
Held, further, that a claim made by a partner for his share of the partnership capital from the managing partner is barred under section 6 of the Prescription Ordinance, after six years from the date of the termination of the partnership. In such a case the provisions of sections 90 and 111 of the Trusts Ordinance are not applicable.
Kandiah Vs. Kandasamy (73 N.L.R. 105)
Plaintiff claimed a declaration of title to thirteen lands, damages and ejectment of the defendant who was in possession. Some months earlier he had filed action No. 9929 against the same defendant claiming three other lands on the same title. The two cases came up for trial together, and action No. 9929 was laid by until the present action was decided.
Held, that the filing of the earlier action for three different lands did not constitute a bar to the present action. Neither section 34 nor section 207 of the Civil Procedure Code could affect the maintainability of the present action.
Morais Vs. Victoria (73 N.L.R. 409)
Where one transaction gives rise to two distinct causes of action neither section 34 nor section 207 of the Civil Procedure Code requires a plaintiff to include both causes of action in the same suit.
“It is essential to determine when a plea in bar is raised on the allegation that there has been a splitting of a cause of action such as prohibited by section 34 or by reason of res judicata in terms of section 207 whether the two suits really relate to the infraction of the same or a different right.”
Fernando Vs. The Village Council of Andiambalama(78 N.L.R. 4)
That provisions of the Civil Procedure Code relating to the joinder of causes of action and parties are rules of procedure and not substantive law. Courts should adopt a common sense approach in deciding questions of misjoinder or nonjoinder.
Adlin Fernando Vs. Lionel Fernando (1995 (2) S.L.R. 25)
The plaintiff-petitioner sought an enjoining order, an interim injunction and a permanent injunction against the defendant. The petitioner moved court by way of a motion to call the case in open court to support this application. The court without hearing the plaintiff issued notice of interim injunction on the basis that the plaintiff has not sought any main relief.
Held:
(i)When a litigant seeks a hearing from court, he is entitled to be heard before an order is made in his suit.
(ii)Failure of court to give a hearing to the plaintiff deprived the plaintiff an opportunity to make submissions in support of the enjoining order and this has resulted in grave prejudice to the plaintiff.
Krishnamoorthy Vs. Ganeshan (2004 (1) S.L.R. 374)
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