(a)claims in respect of mesne profits or arrears of rent in respect of the property claimed;
(b)damages for breach of any contract under which the property or any part thereof is held; or consequential on the trespass which constitutes the cause of action; and
(c)claims by a mortgagee to enforce any of his remedies under the mortgage.
Example:- A sues B to recover land upon the allegation that the land belongs to C, and that he A, has bought it of C, A makes C a party defendant; but he cannot, without leave of the court, join with this claim an alternative claim for damages against C for non-performance of his contract of sale.
(2) No claim by or against an executor, administrator, or heir, as such, shall in any action be joined with claims by or against him personally unless the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor, administrator, or heir, or are such as he was entitled to or liable for jointly with the deceased person whom be represents.
It is not a misjoinder under sub section 2 of section 35 for plaintiff to sue defendant on a bond due to plaintiff in his personal capacity, and as administrator of his wife’s estate and for recovery of an article of jewellery belong to his deceased wife.
Wyramuttu Vs. Eliyatamby (2 N.L.R. 213)
Parties to a partition action cannot join claims for damages arising from a wrongful act committed by the other co-owners.
Silva Vs. Silva (9 N.L.R. 110)
In an action in a District court by a lessee of a land for recovery of possession and damages against a person who has ejected him from the land, the Judge has the power even after the filing of the plaint, to grant the special leave to join an alternative claim against the lessor for damages and for refund of purchase money.
Hutchinson C.J. It seems convenient that the lessee should be allowed to join in the same action a claim against the lessor for damages in case he does not defend the title.
Appuhamy Vs. Dionis (12 N.L.R. 382)
Whilst the action for declaration of title and recovery of damages against a trespasser was pending, plaintiff sold the land to a third party. Vendees need not be added as plaintiffs. The plaintiff is not debarred from maintaining action for damages.
Elisahamy Vs. Punchibanda (14 N.L.R. 113)
Plaintiff sued the defendants on two causes of action.
(1) that acting in concert they unlawfully broke open the door of her house and removed articles of a certain value;
(2) that on a later date they took forcible possession of the house and land in which she lived and reaped the paddy cultivated by her on a portion of the land. Plaintiff claimed a declaration of title to the land and damages.
Held, that the joinder of two causes of action was obnoxious to the provisions of section 35 of the Civil Procedure Code.
Muthumenike Vs. Sudumenike (45 N.L.R. 58)
Where the holder of a cheque is an endorsee who has paid valuable consideration, his rights on the cheque cannot be extinguished by the subsequent death of the drawer before presentment. The liability of the drawer would pass to the executor or administrator of his estate.
Where a cheque, after it is endorsed, is materially altered by the drawer with the consent and acquiescence of the endorser, the endorser’s liability to the endorsee remains unaffected by the alteration.
When a cheque is dishonoured on presentment by an endorsee, a promise made thereafter by the endorser to pay the amount of the cheque to the endorsee is evidence of an admission on his part that notice of dishonour was given to him by the endorsee. Where the drawer of a cheque is dead, section 35 (2) of the Civil Procedure Code does not bar an endorsee from suing both the endorser and the executor of the deceased drawer’s estate in the same action. And if the endorser happens to be the executor de son tort also of the drawer’s estate, he may be sued both personally and as executor de son tort in the same action.
Jayasekera Vs. Sinnakarruppan (69 N.L.R. 88)
Section 35 of the code permits the following claims to be made without the leave of court,
(a)Claim in respect of the property claimed,
(b) Damages for breach of any contract under which the property or any part thereof is held or consequential on the trespass which constitutes the cause of action; and
(c) Claims by a mortgagee to enforce any of his remedies under the mortgage.
Sulthan Vs. Graphi (Sri Skantha Law Reports Vol. III page 114)
Section 35 of the Civil Procedure Code Procedure contemplates two types of actions --
(1) for the recovery of immovable property;
(2) for the declaration of title to property,
Therefore where title to the property has been proved, as in this case the fact that one had failed to ask for a declaration of title to the property will not prevent one from claiming the relief of ejectment.
Jayasinghe Vs. Tikiribanda (1988 (2) C.A.L.R. 24)
The District Court refused the interim injunction sought by the plaintiff-petitioner on the basis that there is a mis-joinder of causes of action under section 35 (1)
It was contended that, as the plaintiff-petitioner sought a declaration not only that he is entitled to the land but also further declaration inter alia to invalidate two deeds, it violated the provisions of section 35 (1) Civil Procedure Code as in an action instituted in terms of section 35, no other claim or cause of action shall be made unless with the leave of Court, except in cases enumerated therein.
Held that,
(i)the plaint gives full details regarding the conduct of the respondents to deprive the plaintiff’s right to own and possess the subject matter of the action.
(ii)the plaintiff pleads in paragraph 17 that a cause of action has arisen to evict the defendant and place the plaintiff in possession of the land.
(iii)there is only one cause of action. The prayer for invalidation of the two deeds is consequential to prevent the respondents from alienating the land.
(iv)it is wrong to prevent the alleged actions of the defendants and to invalidate any legal transfers or alienation.
Fernando Vs. Lakshman Perera (2000 (2) S.L.R. 413)
Balapatabendi J. held that;
1.The object of the Civil Procedure Code is to prevent civil proceedings from being frustrated by any kind of irregularity or lapse which has not caused prejudice or harm to a party.
2.The two claims urged by the petitioner in the plaint could be tried in law in the same action under section 35(1) to avoid a multiplicity of actions.
3.The application even belated, would not cause grave prejudice to the respondents if the application was allowed.
“Rules of procedure have been designed and formulated to facilitate due administration of justice.”
Edirisinghe Vs. Wimalawardane (2002 (3) S. L. R. 343)
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