LYALL GRANT J.—Asanally v. Appuhamy.
1931Present: Lyall Grant J.ASANALLY v. APPUHAMY.
2—C. R. Teldeniya, 7,327.
•Court of Requests—Action to recover ground rent—Application to amend plaint—Claim for use and occupation—Civil Procedure Code, ss. 815 and 816.
Where, in an action to • recover ground rent in respect of chena landsgiven for cultivation, the defendant pleaded that the action was notmaintainable as the lease was not in writing,—
Held, that the plaintiff was entitled .to amend the pleadings by includinga claim for use and occupation.
^^PPEAL from a judgment of the Commissioner of Requests, Teldeniya,
Navaratnam, for plaintiff, appellant.
June 2, 1931, Lyall Grant J.—
The plaintiff in this case, the owner of certain lands, sued the defendantfor ground rent in respect of his chena lands given for tobacco cultivation:The defendant amongst other defences pleaded that as a.matter of lawthe plaintiff could not maintain the action inasmuch as a verbal leasewas contrary to the provisions of Ordinance No. 7 of 1840. The plaintiffthereupon moved to amend his plaint by the addition of a fourth para-graph. “ That the defendant has had the use and occupation of thesaid lands for about a year and the plaintiff claims Rs. 50 as compensationfor such use and occupation.” The learned Commissioner refused toallow the amendment as the proposed amendment would, in his opinion,alter the scope and nature of the action, converting it, in effect, from anaction for a fixed sum claimed as rent under an informal lease, for aspecified period, to an action for use and occupation to recover a reason-able remuneration. Argument was heard on the legal defence raisedand the Commissioner upheld the legal objection taken and dismissed theaction with costs. He allowed the plaintiff lqave to reinstitute a properly•constituted action for use and occupation.
The appellant submits that these findings should be set aside and thecase remitted back to the Court of Requests for trial on the facts.
I think the learned Commissioner was wrong in refusing the plaintiffleave to amend the plaint. I do not think that the scope and nature•of the action would be substantially modified by such amendment. Evenwithout the amendment I am by no means sure that the plaintiff wouldnot have been entitled to maintain the action for use and occupation.The third paragraph of the plaint says that the defendant took the landsfrom the plaintiff in or about January, 1929, and continued to make use•of them till January, 1930.
Section 815 of the Civil Procedure Code sets out that in Court of Requests•cases a variance between- an allegation in a pleading and the proof shallbe disregarded as immaterial, unless such proof discloses a new cause ofaction, or the Court is satisfied, that the adverse party has been misledthereby to his prejudice. Here I do not think that there was any sub-.stantial new cause of action. The cause of action was the non-payment-of ground rent.
AKBAB, J.—Commissioner of Stomps v. Fernando.
Section 816 confers wider power upon the Court. It allows the Courtupon application to allow pleadings to be amended at any time beforetrial* or during the trial if substantial justice will be promoted thereby.
It was held in 1895 by Bonser C.J. in the case of Read v. Samsudin 1that in a Court of Bequests action all technicalities of law should beavoided. When a plaint, defective in some material respect, has beenfield, it is not necessary to move that it be taken off the file, but it is theduty of the Court of its own accord, or upon its attention being called,to reject the plaint or return it to the plaintiff for amendment. TheChief Justice also observed that it is not the duty of the Judge to throwtechnical difficulties in the way of administering justice. He ought toremove them out of the way upon proper terms as to costs and otherwise.
In the case of Cassim Lebbe v. Natchiya 2 Shaw J. discussed this sectionof the Code and held that an amendment which is bona fide desired shouldbe allowed at any period of the proceedings, if it can be allowed withoutinjustice to the other side, and in most cases conditions as to costs willensure no prejudice being caused to the other side.
The order is set aside and the case is remitted back for the purpose ofallowing the plaintiff to amend his plaint as desired and for the trial ofthe< case.
The appellant will have the costs of this appeal in any event.
Order set aside..
ASANALLY v. APPUHAMY