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Present: Ennis J. and Shaw J.
SENEVIRATNA v. CANDAPPA.57—D. C. Colombo, 32,388.
Amendment of pleadings—Is lateness of application ground for refusing
motion for amendmentt
Plaintiff institutedthis actionfor declaration of title and
damages. The District Judge decided the question of title infavour of plaintiff, and reserved the question of damages pendingappeal. After the decision in appeal, the plaintiff moved toamend his claim for damages from Bs. SO a month to Bs. 2,000 ayear.
Held, that the lateness of the application was not a ground lorrefusing the application.
“ However negligent or careless may have been the first omission,and however late the proposed amendment, the amendment should
• be allowed if it can be made without injustice to the other side. ”
HE facts are set out in the judgment.
Bawa, K.C. (with him Gooray), for appellant.—The DistrictJudge was wrong in disallowing the amendment. The applicationwas made a week before the trial, so as to prevent any injustice tothe other side. If necessary, the trial might have been postponed,with an appropriate order as to costs. The decisions under thecorresponding English rules and orders lay down that howevernegligent or careless may have been the first omission, and howeverlate the proposed amendment, the amendment should be allowed.if it can be made without injustice to the other side. (SeeClarapede v. Commercial Union Association 1 and Tidesley v. Harper *)The case of The Alert9 is on all fours with this. There anamendment was allowed increasing the amount of damages claimedafter the question of liability had been decided.
F. de Zoysa (with him W. H. Perera), tor respondent.—Theamendment comes too late. If allowed, it would gravely prejudicethe respondent. Clearly it is not bona fide. The object of it iBto make up for the defeat in appeal. The District Judge hasexercised his discretion in the matter.
Bawa, K.G., in reply.
Cur. adv. vvlt.
132 W. R. 263.
• 72 L. T. 124.
* 10 G. D. 396.
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July 4, 1917, Shaw J.—
This is an appeal from an order of the District Judge refusingpermission to the plaintiff to amend the plaint by increasing theamount of damages claimed.
The action, which commenced so long ago as 1911, claimed adeclaration of title to 5/12th share of a certain land, and possessionand damages at the rate of Bs. 30 a month until the plaintiff shouldbe restored to possession.
The defendants denied the plaintiff's title, alleging that the landwas subject to a fidei commissum, and that the -vendors to theplaintiff could convey no title to the shares claimed by him.
• The District Judge decided the rights of the parties in favour ofthe plaintiff, reserving the questions of damages and of compen-sation to the defendants for improvements pending appeal. Onappeal the. Supreme Court modified the judgment but declared theplaintiff entitled to the shares claimed during the lifetime of hisvendors.1
After considerable delay, due apparently to the absence of theplaintiff’s proctor from the Colony, the case was again set downfor assessment of damages and compensation, and the hearing fixedfor March 29 last.
On March 21 the plaintiff applied to the Judge to amend hisclaim by increasing the amount of damages claimed from Bs. 30a month to Bs. 2,000 a year. The Judge refused to allow theamendment, on the ground of .the lateness of the application. „
It does not seem to me that this is in itself a sufficient groundfor refusing the application. Under the corresponding Englishprovision contained in Order 28, rule 1, of the rules of the SupremeCourt, it has been held in many cases that an amendment oughtalways to be allowed where the opposite party is not prejudicedthereby. " However negligent or careless may have been the firstomission, and however late the proposed amendment, the amend-ment should be allowed if it can be made without injustice to theother side ” (per Brett M.B. in Clarapede v. Commercial UnionAssociation,1 and see also Tidesley v. Harper 2). In the case of TheAlert 3 and amendment was allowed increasing the amount of damagesclaimed after the question of liability had been decided, as is soughtto be done in the present case, and it is common practice foran amendment to be allowed increasing the amount of damagesclaimed, even after verdict, where a jury has found for a largeramount of damages than has been claimed in the writ (see Knowlmanv. Bluett 4).
In the present case I can see no prejudice that can be sustainedby the defendants by the proposed amendment being made. If theplaintiff can satisfy the Court that the amount of profits applicable
* 32 W. R. 263.*10 O. D. 396.
* 72 L. T. 124.*L. R. 9 Ex. 1.
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to the share of the property out of which he has been kept by thedefendants exceeds the amount at which he originally estimated it,there is no ftur reason why he should not recover it, or why thedefendants should be entitled to retain what has been received bythem and is hia property. Late as the application was, it couldhave entailed no further delay in the determination of the case, asthe amendment raises no new issue, and the evidence on behalf ofthe defendants regarding the amount received in respect of theproperty would have been the same on the issue, regardless of theamount of the claim. Even if they had desired to strengthen theirevidence in view of the increase in the claim, they would still havehad ample time to do so before the hearing, had the amendmentbeen allowed when applied for.
I would allow the appeal, and direct the amendment asked forto be made. The plaintiff should pay the .co8.tsh.pf the.- applicationfor the amendment, and in view of the fact thkt.the presenV'dif&oultyhas arisen in consequence of the delay in applying'for the amendment -desired, I would make no order as to the costs of this appekh
Ennis J.—I agree.
SENEVIRATNA v. CANDAPPA