Don’t join unnecessary parties to your action

If you are leasing a property to somebody, make sure that such a person is not part of your litigation in a suit concerning that property.

A plaintiff named the person who is leasing a property from him as the lessee, and asked for a declaration that the property is legally his, after a divorce from his wife. However the District Judge had asked that his plaint be amended as he had named the lessee as a second plaintiff, and asked that he be declared ‘lessee’.

This order was appealed by the defendant in a leave to appeal application in the Court of Appeal. (Maseena v. Sahud and Another - SLR - 109, Vol 3 of 2003 [2003] LKCA 13; (2003) 3 Sri LR 109 (April 28, 2003)).

The Court of Appeal judgement records the antecedents of the case in this manner:

“This is an application for leave to appeal against the order 01 made by the learned Additional District Judge of Gampola dated 6.5.2002 returning the plaint to the plaintiffs’ for amendment. The facts leading to the said order are as follows: The first plaintiff who was the husband of the petitioner has obtained a divorce against the petitioner. By his plaint dated 26.10.1998 (filed on 02.11.1998) he has averred that he is the owner of the property described in the first schedule to the plaint and the second plaintiff is the lessee of the said property. According to the plaint even after the first plaintiff divorced the petitioner the latter has continued to occupy the house situated in that property. The plaintiff has averred that after the divorce the petitioner has no right to the property.”

That would have been all well and good had he not asked for a declaration that the second plaintiff is in fact the lessee of the property. This was curious and the Court of Appeal noted in judgement: “He accordingly has prayed for a declaration that he is the owner of the property and the second plaintiff is the lessee of that property and for an order ejecting the petitioner from that property.”

The defendant-petitioner has moved in the District Court that issues 10 to 13 raised on her behalf be tried first as preliminary issues of law. The most relevant issue was issue number 12 – where the defendant had raised the matter of a possible misjoinder of parties in the case.

The issues raised were as follows: “Issues Nos. 10, 11, 12 and 13 raised by the defendant are as follows:

No.10: According to law, can the plaintiff maintain this action? 

No.11: Is the action misconceived in law?

No.12: Is there a misjoinder of parties?

No.13: Has the action been filed in contravention of Sections 35(1) and /or 40 and /or 42 and /or 43 of the Civil Procedure Code?”

In simple terms, what has the lessee got to do with the issue of the first plaintiff having got a divorce from his wife following which he was asking that he be declared the sole owner of a property? Nothing. So, the first plaintiff asking that the second plaintiff be named lessee was a totally unnecessary voyage on a whim, which counsel probably embarked upon as they were under the impression that a lessee has some sort of oblique ‘ownership’ right to the property too.

In any event the first plaintiff and the second could not be joined in one cause of action as they did not have a single cause of action obviously with regard to the property. Why so? The second plaintiff was not aggrieved in the same way as the first plaintiff with regard to the property.

The Court had some terse observations with regard to the misjoinder of parties in this way in one cause of action:

“It is clear from this section that in an action for declaration of title to immovable property it is not possible to seek, without the leave of Court, a declaration that a party, other than the party claiming declaration of title is a lessee. The plaintiffs have not obtained leave of the Court to join those two different claims in the same action. According to Section 11 of the Civil Procedure Code, “All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly severally or in the alternative in respect of the same cause of action. It is clear that the two plaintiffs are not persons in whom the right to any relief in respect of the same cause of action jointly existed. In these circumstances the learned Judge has quite rightly held that the plaintiff’s action is not properly constituted as it is contrary to Section 35(1) of the Civil Procedure Code and that there is misjoinder of parties.”

The plaintiff had already amended his plaint once, and the judge having stated that there was a misjoinder of parties wanted the plaintiff to amend the plaint once more. This, the Court of Appeal considered, should not have been done.

The court therefore direct the learned District Judge to formally record his answers to issues No. 10, 11, 12 and 13 in accordance with the conclusions set out in his order, and thereafter make an appropriate order regarding the case in accordance with the recorded answers to issues No. 10, 11, 12 and 13.

What are the “conclusions set out in his order” referred to above? With regard to issue number 12 there was a misjoinder of parties, and if so would the Judge be required to dismiss the case?

In the case of Daya Jayaratne (nee Agampodi Silva) vs. Singha Arachchige Ajith Thilaksiri and 46 others, (S.C. Appeal 105/2013), it was observed in judgement that a judge could order separate trials of any different misjoined causes of action on his own – or at the instance of the parties. But in the case under review the parties had not asked for separate actions.

The Court of Appeal held that the defendant-appellant, who went by name Maseena, was entitled to costs of the appeal in a sum of Rs. 15,000.