The claim or relief sought
The particulars of claim conclude with a prayer for the appropriate relief which conforms with the cause of action set out in the body of the document.
The claim or relief sought is a distinct portion of the declaration / particulars of claim and it is necessary to set it out with precision. It is not essential that a claim must be made against every defendant joined. Where no objection is taken at the outset to such a joinder the defendant cannot be heard to object to the declaration / particulars of claim on the ground that it makes no claim against him/her.
It is, however, usual in such a case to set out why the defendant is joined and that no relief is being sought against him/her. Besides the exact relief thus prayed for it is usual to make an alternative claim for ‘general or alternative relief’, a claim known as the ‘salutary clause’. The object of this is to ensure the granting of such other relief as the premises of the declaration / particulars of claim and the evidence at the trial may warrant the court to grant, even though such relief has not been specifically claimed. The extent to which the salutary clause may be permitted to cover claims which have not been specifically made cannot be precisely indicated, but from the opposite and negative point of view it can be said definitely that the salutary clause will not operate to permit the granting of relief which is of quite a different nature from that primarily sought, at all events where the necessity for that relief is not revealed by the pleadings and established by the evidence. Thus, in an action for damages for fraud the plaintiff is not entitled to recover anything upon a wholly different basis.
Where a prayer for ‘further and/or alternative relief’ is invoked to justify or entitle a party to an order in terms other than those set out in the notice of motion, such prayer may be granted only where the basis for substantially different relief is clearly indicated in the founding (and other) affidavits and established by satisfactory evidence on the papers.
When specific performance is claimed it is competent to claim in the alternative that should the defendant not perform within such period as may be ordered by the court the contract be cancelled and damages be paid. Following from this an unpaid seller is not precluded from bringing an action for damages merely because he has previously obtained a judgment for specific performance.
For more go to Notes on action (trial) proceedings
