GUNASEKERA AND ANOTHER
COURT OF APPEALS. N. SILVA, J. (P/CA)
A. APPLICATION NO. 188/94
C. COLOMBO CASE NO. 15040/LJULY 25, 1994.
Civil Procedure – Pleadings – Sections 93 of the Civil Procedure Code asamended by Act, No. 9 of 1991 – Meaning of 'laches' – Sections 146 and -proviso to section 46 of the Civil Procedure Code.
The amendment (by Act No. 9 of 1991) to section 93 of the Civil Procedure Codehas for the first time taken away the power of court ex mere motu to amendpleadings. An amendment could be allowed only upon the application of a party.If the Application was made before the first date of trial, the court once againenjoyed the full power of amendment at its discretion. The court at this stage wasno longer required to look for exceptional circumstances or record reasons forpermitting amendment to pleadings.
The amendment of 1991 has omitted the words “or processes affected by theorder” thereby taking away the power court enjoyed earlier of permitting theamendment of processes.
Amendments to pleadings on or after the first date of trial can be allowed only –
(1) If the Court is satisfied that grave and irremediable injustice will be caused ifthe amendment is not permitted; and (2) the party applying has not been guilty oflaches.
Further, the court is obliged to record reasons for concluding that the above twoconditions have been satisfied.
The object of these amendments is to eliminate unnecessary delay in litigationand ensure that the work of the court flows smoothly.
A correction of a clerical or typographical error still comes within the meaning ofan amendment under section 93. There is no logical reason why courts shouldshow more leniency towards the amendments to pleadings by alteration and treatadditions or omissions less indulgently.
Once the two conditions are satisfied, the party making the application is requiredto satisfy the court that circumstances that warrant an amendment to pleadingsunder section 93(1) also exist, namely, that no irremediable prejudice will becaused to the respondents, such an amendment will avoid a multiplicity of actionsand facilitate the task of administration of justice. An obvious example ofprejudice being caused to the opposing side is when the amendment woulddeprive the opposing party of the plea of prescription. Beside theseconsiderations, there is also the general bar set out in the proviso to section 46 ofthe Civil Procedure Code against permitting amendments which would have theeffect of converting an action of one character into an action of inconsistentcharacter.
Section 146 of the Civil Procedure Code gives the trial judge wide powers torecord the issues on which the right decision of the case appears to court todepend. This can be done upon a consideration of the pleadings filed, ordocuments produced and if necessary, on examination of parties. In fact issuescould be framed during the course of the trial upon the evidence of witnesses.
Laches itself means slackness or negligence or neglect to do something which bylaw a man is obliged to do. It also means unreasonable delay in pursuing a legalremedy whereby a party forfeits the benefit upon the principle vigilantibus nondormlentibus jura subveiunt. The neglect to assert ones rights or theacquiescence in the assertion of adverse rights will have the effect of barring aperson from the assertion of adverse rights will have the effect of barring a personfrom the remedy which he might have had if he resorted to it in proper time. Whenit would be practically unjust to give a remedy either because the party has by hisconduct done that which might fairly be regarded as equal to waiver of it, orwhere by his conduct and neglect he has though perhaps not waiving thatremedy, yet put the other party in a situation in which it would not be reasonableto place him if the remedy were to be afterwards asserted, in either of these caseslapse of time and delay are most material. What Is reasonable time and what willconstitute delay will depend upon the facts of each particular case. However thetime lag that can be explained does not spell laches or delay.
The principles are:
Delay alone will not bar a person from obtaining relief which he may beentitled to.
Court will grant relief only if the delay can be reasonably explained.
The provisions of section 93(2) of the Civil Procedure Code are intended to beused when amendments to pleadings are necessitated by unforeseencircumstances.
Under subsection 93(3) an order for payment of costs can be made only upon anapplication for amendment of pleadings being allowed. There is no provision forsuch an order to be made conditional upon the amendments being acceptedafter hearing objections thereto by the opposing party. When section 93(3) is readwith section 93(4) this becomes clear. The court is required to make theamendments on the face of the pleadings and place its signature thereon. In otherwords, court should whenever possible, make the amendments immediately afterthey are permitted on the plaint, answer or replication and continue theproceedings. It is only when such a course is not convenient, that apostponement should be allowed for filing of a copy of the pleadings asamended.
A postponement may also be granted with or without costs when pleadings areamended at the trial stage, for the opposing party to meet the new situation.
The court should not in any event permit more than one application foramendment of pleadings in a case.
Cases referred to
Mackinnons v. Grindlays Bank (1986) 2 Sri LR 272.
Ranaweera v. Jinadasa S. C. Appeal 41/91.
Lindsay Petroleum Co. v. Hurd (1874) LRPC 221, 239.
S/'so Menika v. Cyril de Alwis (1982) 1 Sri LR 368.
APPEAL from judgment of District Judge of Colombo.
Romesh de Silva, P.C. with P. Kumarasinghe for defendant-petitioners.
Sivarasa, P.C. with N. Sivendran and plaintiff-respondent.
Cur. adv, vult.
September 08, 1994.
The respondent filed action on 28.6.90 against the petitionerspraying for a declaration that he is the owner of premises no : 122Sea Street, Colombo 11, ejectment of the petitioners therefrom anddamages. The petitioners filed answer on 11.9.91 stating that theyand one Jayapala, as partners of the business "The Bombay
Harmonium Company”, were the tenants of premises no: 102, payinga rental of Rs. 3397.67 per month to the respondent. They prayed fora dismissal of the action. On 1.7.92 when the matter came up for trial,two admissions were recorded. When two issues were raised by therespondent, they were objected to by the petitioners. Court deliveredorder accepting the two issues and directing the petitioners tocommence the trial. On 25.2.93, the third day of trial, the case waspostponed as the principal witness for the petitioners was absent.Trial was postponed once again on 1.7.93 for 2.11.93. When the trialwas taken up on the fifth date, the petitioners suggested 10 furtherissues which were objected to by the respondent, as they were inrespect premises no: 122 whereas, the answer referred to premises102. The objection was upheld. The court granted leave to thepetitioners to tender an amended answer upon the pre-payment ofRs. 15,000/= as costs and subject to any objection that may be takenby the respondent to the acceptance of the amended answer. Thepetitioners filed an amended answer wherein the figure 102 inparagraph 5(a) of the answer was altered to 122. There was noaccompanying affidavit explaining the need to amend the answer orthe delay of over two years to do so. The respondent objected to theCourt accepting the amended answer on the following grounds.Namely, the petitioners were guilty of undue delay, the trial hadalready commenced, no reasons were adduced for the amendmentand the proposed amendment if accepted, would cause grave andirreparable loss to the respondent. The learned additional DistrictJudge by the order dated 7.3.94 rejected the amended answer. Thisapplication is for the revision of that order.
It is submitted by learned President’s Counsel for the petitionersthat the reference to premises no: 102 instead of no: 122 inparagraph 5(a) of the answer is clearly a clerical error and that theorder rejecting the amended answer would cause grave and,irremediable injustice to the petitioners in that their total defensewould be rejected. It is further submitted that the petitioners are notguilty of laches as they became aware of the error only on 2.9.93.Revisions for the amendment of pleadings are found in section 93 of
the Civil Procedure Code. This section itself has been the subjectamendments. As it stood originally it read;
“At any hearing of the action, or at any time in thepresence of or after reasonable notice to all parties to theaction before final judgment, the Court shall have fullpower of amending in its discretion and upon such termsas to costs and postponement of day of filing answer orreplication or for hearing of cause, or otherwise, as it maythink fit all pleadings and processes in the action, by wayof addition, or of alteration, or of omission. And theamendments or additions shall be clearly written on theface of the pleadings or process affected by the order, or ifthis cannot conveniently be done, a fair draft of thedocument as altered shall be appended to the documentintended to be amended, and every such amendment oralteration shall be initialled by the judge.”
These provisions were considered by Sharvananda CJ. inMackinnons v Grindlay's Bankm. His Lordship expressed the viewthat “the test that should be applied in exercising the discretion topermit the amendment of pleadings is whether such amendment isnecessary to effectively adjudicate upon the dispute between theparties. Provisions for the amendment of pleadings, he added, areintended for promoting the ends of justice and not for defeating them.The object of rules of procedure is to decide the rights of the partiesand not to punish them for their mistakes or shortcomings. A partycannot be refused just relief merely because of some mistake,negligence or inadvertence. However negligent or careless may havebeen the first omission, and however late the proposed amendment,the amendment may be allowed if it can be made without injustice tothe other side.”
Not long after the decision in the Mackinnons case, section 93 wasamended by Act no: 79 of 1988 to read;
93(1) “The Court may in exceptional circumstances andfor reasons to be recorded, at any hearing of the action, or
at any time in the presence of, or after reasonable noticeto all parties to the action, before final judgment, amend allpleadings and processes in the action by way of addition,or of alteration or of omission.
Every order for amendment made under this sectionshall be upon such terms as to costs and postponement ofthe date fixed for the filing of answer, or replication, or forthe hearing of the case or otherwise, as the Court maythink fit.
The amendments or additions made in pursuance ofan order under this section shall be clearly written on thepleadings or processes affected by the order, or if itcannot be conveniently so done, a fair draft of thedocument as altered shall be appended to the documentintended to be amended and every such amendment oralteration shall be initialled by the judge.”
A very significant change was brought about in the earlier sectionby the omission of the words “the court shall have full power ofamending in its discretion” and the inclusion of the phrase “ the courtmay in exceptional circumstances and for reasons to be recorded".The amendment thereby curtailed the full power court had earlier ofamending in its discretion pleadings and processes in the action. Thereplacement of the word “shall" with the word “may” in the amendedsection is an indication that court was to act sparingly in interpretingthe words “exceptional circumstances”. Furthermore, court wasrequired to record reasons for permitting any amendment to thepleadings or processes. This is a requirement to enable a partyaggrieved with the reasoning to challenge it in a higher court and tofacilitate the task of an appellate court when it is called upon toreview the decision of the trial judge. The trend in curtailing theunlimited powers of court to allow amendments to pleadingsgenerally and specially at the trial stage was continued in thesubsequent amendment to the section by Act No: 9 of 1991. The ramended section read;
93(1) “Upon application made to it before the day firstfixed for trial of the action, in the presence of, or after
reasonable notice to all the parties to the action, the courtshall have full power of amending in its discretion, allpleadings in the action, by way of addition or alteration orof omission.
On or after the day first fixed for the trial of the actionand before final judgment, no application for theamendment of any pleadings shall be allowed unless thecourt is satisfied, for reasons to be recorded by the court,that grave and irremediable injustice will be caused if suchamendment is not permitted, and that the party soapplying has not been guilty of laches.
Any application for amendment of pleadings whichmay be allowed by the court under subsection (1) or (2)shall be upon such terms as to costs and postponementor otherwise as the court may think fit.
The additions or alterations or omissions shall beclearly made on the face of the pleading affected by theorder; or if this cannot conveniently be done, a fair copy ofthe pleading as altered shall be appended in the record ofthe action to the pleading amended. Every such addition,or alteration or omission shall be signed by the judge.”
The amendment of 1991 has for the first time taken away thepower of court ex mero motu to amend pleadings. An amendmentcould be allowed only upon the application of a party. If theapplication was made before the first date of trial, the court onceagain enjoyed the full power of amendment at its discretion. However,if the application for amendment of pleadings was made on or afterthe first date of trial, the court’s powers were severely curtailed.
It is important to note at this stage that Sharvananda CJ. in theMackinnons case (supra), considered section 93 as it originallystood, in conjunction with section 146 of the Civil procedure Code,which deals with the determination of issues. Significantly, section 93,as amended by Act No: 9 of 1991, provides for amendments topleadings at two stages; vis, prior to the first date of trial, and on'brafter the first date of trial. The liberal principles enunciated in theMackinnons case was to apply only when the court exercised itspowers of amendment at the first stage. The court at this stage wasno longer required to look for exceptional circumstances or recordreasons for permitting amendments to pleadings. However, theremoval of these fetters should not be interpreted to mean that courtcould entertain or allow any number of applications made by partiesto amend pleadings. For reasons given below, court should not inany event permit more than one application for amendment ofpleadings in a case.
Interestingly, the amendment of 1991 has omitted the words “orprocesses affected by the order” thereby taking away the powercourt enjoyed earlier of permitting the amendments to processes.
The amendments to pleadings on or after the first date of trial cannow be allowed only in very limited circumstances. It prohibits courtfrom allowing an application for amendment at this stage unless (1) itis satisfied that grave and irremediable injustice will be caused if theamendment is not permitted, and (2) the party applying has not beenguilty of laches. On no other ground can court allow an applicationfor an amendment of pleadings. Furthermore, court is obliged torecord reasons for concluding that the two conditions referred tohave been satisfied.
Learned President’s Counsel for the petitioners submitted that themain objective of the amendments was to eliminate unnecessarydelay in litigation. In other words, requests for amendments shouldnot be resorted to as a subterfuge for delaying proceedings in cases.How accurate the learned President's Counsel’s submission on thispoint is seen when it is considered in the context of the observationsmade by the Wanasundera Committee in its report on the “Sri LankaLaws Delays and Legal Culture” at page 11, which states –
“When amendments of pleadings are sought, the nature <and content of the amendments should be brought to thenotice of court, because the court will not willy-nilly allowany and every amendment especially where by framingJ appropriate issues the purpose of the desired amendment
could often be achieved. If the judge exercises greatercontrol in dealing with applications to amend pleadings,years of delay could be cut.”
Delay affects not only the parties to the action. The presidingjudge and the system of justice are often forgotten when applying theliberal principles set out in Mickinnon’s case (supra), to amendmentof pleadings. It is only a trial judge who experiences first hand theobstacles to the due administration of justice, when applications forpostponements are made by parties, to rectify matters which couldhave been avoided by the exercise of due diligence. Justice hasmany facets. It is worth remembering, for every case that is broughtbefore a court, there are many others that do not reach it, due to thereluctance of an aggrieved party to undergo further agony of delayand expense a court trial entails. As Dr. Amerasinghe J. inRanaweera v Jinadasa<2) observed;
“A court is under a duty to see that its business isdisposed of in an orderly, prompt and effective manner.Unnecessary postponements are wasteful, nonproductive, time consuming and result in the confusionand congestion of work. They provide fertile ground forpublic criticism of the whole system”
It is the duty of parties to ensure that the work of court flowssmoothly. This can be done by taking necessary action in a case atthe appropriate time.
It seems to us reasonable therefore, to consider the presentapplication not from the very narrow point of the petitioners, to whomit may appear to be a simple alteration of figures, but from a widerperspective of its effect on the due administration of justice andespecially the intent and purpose of the successive amendments tosection 93 of the Civil Procedure Code.
Section 93 empowers court, upon application made, to amendpleadings by way of addition, or alteration or of omission. Thisapplication is to alter the figures “102" in paragraph 5(b) in^'he
answer to “122”. They claim this mistake which they seek to correct,was the result of a mere clerical or typographical error. How thisclerical error appeared in both the Sinhala and English copies of theplaint is left unexplained. What matters here however is, whether it isa correction of a clerical or typographical error, it still comes withinthe meaning of an amendment under section 93. As, the alteration ofsuch an error could be done only under the provisions of that section.There is no logical reason why courts should show more leniencytowards the amendments to pleadings by alteration and treatadditions or omissions less indulgently.
The petitioners have to clear two hurdles. They have to satisfycourt firstly that, (1) grave and irremediable injustice will be causedto them if the amendment is not permitted, (2) there has been nolaches on their part in making the application. Once this hurdle isovercome, they are further required to satisfy court the circumstancesthat warrant an amendment to pleadings under section 93(1) alsoexist. Namely, that no irremediable prejudice will be caused to therespondents, such an amendment will avoid a multiplicity of actionsand facilitate the task of administration of justice. (See Mackinnonscase-supra). An obvious example of prejudice being caused to theopposing side is when the amendment if allowed, would deprive thatparty pleading prescription of the cause of action. Besides theseconsiderations, there is also the general bar set out in the proviso tosection 46 of the Civil Procedure Code, against permittingamendments which would have the effect of converting an action ofone character into an action of inconsistent character.
It was agreed between the parties at the commencement of thetrial that the respondent was the owner of premises no 122 SeaStreet, and it was from those premises that he sought to have thepetitioners ejected. Section 146 of the Civil Procedure Code gives thetrial judge wide power to record the issues on which the rightdecision of the case appears to court to depend. This can be done <-upon a consideration of the pleadings filed, or documents producedand if necessary, on examination of parties. In fact, issues could beframed during the course of the trial upon the evidence of witnesses.Th<2 record of the proceedings in the lower court, filed along with thisapplication does not disclose the petitioners invited court to exerciseits powers under that section.
Nor have the petitioners themselves, sought to frame issues on thebasis of the plaint read along with their answer. In the circumstances,the petitioners cannot be heard to say that they will sufferirremediable injustice if their application for amendment of the answeris refused.
The word “laches” is a derivative of the French verb Lacher, whichmeans to loosen. Laches itself means slackness or negligence orneglect to do something which by law a man is obliged to do.(Stroud’s Judicial Dictionary 5th Ed Pg 1403.) It also meansunreasonable delay in pursuing a legal remedy whereby a partyforfeits the benefit upon the principle vigilantibus non dormientibusjura subveniunt. The neglect to assert one’s rights or theacquiescence in the assertion or adverse rights will have the effect ofbarring a person from the remedy which he might have had if heresorted to it in proper time. (Mozley & Whiteley’s Law Dictionary 10thEd pg 260). When it would be practically unjust to give a remedyeither because the party has by his conduct done that which mightfairly be regarded as equal to waiver of it, or where by his conductand neglect he has though perhaps not waiving that remedy, yet putthe other party in a situation in which it would not be reasonable toplace him if the remedy were to be afterwards asserted, in either ofthese cases lapse of time and delay are most material. (LindsayPetroleum Co v Hurd) <3). What is reasonable time and what willconstitute delay will depend upon the facts of each particular case.However the time lag that can be explained does not spell lachesor delay. If the delay can be reasonably explained the court willnot decline to interfere. (Per Sharvananda J in Biso Menika v Cyril deAlwis)<4).
The principle that emerges from the above citations is, (1) Delayalone will not bar a person from obtaining relief which he may beentitled to. (2) Court will grant relief only if the delay can be reasonablyexplained.^
The petitioners have taken over 14 months to file answer. When thematter came up for trial on 1.7.92, they took objection to the 2 issuesraised by the respondent and sought an order of court thereon, whichwas delivered 3 1/2 months later. On 25.2.93 the petitioners were notready to lead evidence and the matter was postponed on theirapplication. It was on the fifth date of trial, 2 years and 2 months afterfiling of the answer, that an application was made to amend it. AsAmerasinghe, J observed in Ranaweera’s case (supra);
“No postponements must be granted, or absence excused,except upon emergencies occurring after the fixing of thedate, which could not have been anticipated or avoided withreasonable diligence, and which cannot otherwise beprovided for.”
The principle laid down in Ranaweera's case when applied to thefacts of the present case would clearly deny the petitioners the right toplead absence of laches. They will be hard put to satisfy any court thatthey were taken by surprise or the error could not have been discoveredearlier with reasonable diligence. The petitioners’ conduct points to oneconclusion alone. That is, they have acted without due diligence. Thedelay on their part to detect the error deprives them of the right toamend their answer at the time they applied to do so. The provisions ofsection 93(2) of the Civil Procedure Code are intended to be used whenamendments to pleadings are necessitated by unforeseencircumstances. They should not be applied in circumstances asdisclosed in the present case. A glance at the plaint and answer, wouldhave made the mistake in the number of the premises given in theanswer obvious.
Another matter that needs comment is the order for prepayment ofcosts made by the Judge. Under section 93(3) an order for payment ofcosts can be made only upon an application for amendment ofpleadings being allowed. There is no provision for such an order to bemade conditional upon the amendments being accepted after hearingobjections thereto by the opposing party. This becomes clear whensection 93(3) is read with subsection (4). The Court is required to makethe amendments on the face of the pleadings and place its signaturethereto. In other words, court should wherever possible, make theamendments immediately after they are permitted, on the plaint, answeror replication and continue with the proceedings. It is only when such acourse is not convenient, that a postponement should be allowed for thefiling of a copy of the pleadings as amended. A postponement may alsobe granted with or without costs, when pleadings are amended at thetrial stage, for the opposing party to meet the new situation.
For the reasons given, we are not inclined to grant the relief soughtby the petitioners. Their application is accordingly dismissed withoutcosts.
S. N. Silva, J. -1 agreeApplication dismissed.
GUNASEKERA AND ANOTHER v. ABDUL LATIFF