ANDREASSUPREME COURTG.P.S DE SILVA, C.J.
C. Mt.LAVINIA No 93/91 (3)
Civil Procedure – S.93(2) amended by Act No. 9 of 1991 – Divorce – Mali-cious – Desertion Amendment of Answer – New Cause of Action – Laches.
The Plaintiff sued the Defendant for a Divorce on the ground of MaliciousDesertion. The defendant-appellant in her answer denied the several aver-ments in the plaint and sought the dismissal of the action. After the seconddate of Trial, the Defendant-Appellant moved to amend the Answer, by theamended answer the Defendant-Appellant pleaded a new cause of Actionon the ground of Adultery with the 2nd Defendant who was to be added.
The District Judge rejected the Defendant's application to amend, the leaveto appeal application made to the Court of Appeal was dismissed, onappeal.
The amendment introduced by Act No. 9 of 199 -S. 93 (2) -was clearlyintended to prevent undue postponement of trials by placing a significantrestriction on the power of the Court to permit amendment of pleadings'on or after the day first fixed for Trial'.
It is clear that the Defendant-Appellant was well aware of the fact thatthe Plaintiff was living in adultery at the time the answer was filed, but haschosen not to rely on that ground in her answer.
While the Court earlier 'discouraged* amendment of pleadings on thedate of trial, now the Court is precluded from allowing such amendmentssave on the ground postulated in the sub-section.
AN APPEAL from the Judgment of the Court of Appeal.
case referred to:
1. Daryanani v. Eastern Silk Emporium Ltd. 64 NLR 529 at 534.
D.R.P. Gunatillake with S.A.D.S. Suraweera for Defendant-Appellant.S.S. Sahabandu for the Plaintiff-Respondent.
Cur. adv. vult.
February 10, 1995G.P.S. DE SILVA, C.J.
The Plaintiff sued the Defendant for a divorce on the ground that theDefendant had maliciously deserted him. The Defendant in her answerfiled on 17.6.92 denied the several averments in the answer and soughtthe dismissal of the action. The case was first fixed for trial on 30.10.92and the second date on which the case was fixed for trial was 15.1.93. It was after the second date on which the case was fixed for trial thatthe Defendant moved to amend her answer. The amended answer isdated 10.6.93 By the amended answer the Defendant pleaded a newcause of action on the ground of adultery with the 2nd Defendant whowas to be added as a party to the action. The point that needs to bestressed is that in paragraph 7 (c) of the amended answer the Defend-ant averred that the Plaintiff had been living in adultery with the partysought to be added for the past several years.
The District Judge rejected the Defendant's application to amendher answer. The Defendant moved the Court of Appeal for leave to ap-peal against the order of the District Judge. Having regard to the provi-sions of section 93 (2) of the Civil Procedure Code as amended by ActNo. 9 of 1991, the Court of Appeal affirmed the order of the DistrictJudge. The Defendant has now preferred an appeal to this court.
Section 93 (2) as amended reads thus:-
"On or after the day first fixed for the trial of the action and beforefinal judgment, no application for the amendment of any pleadingshall be allowed unless the court is satisfied, for reasons to berecorded by the court, that grave and irremediable injustice will becaused if such amendment is not permitted, and on no other ground,and that the party so applying has not been guilty of laches."
The amendment introduced by Act No. 9 of 1991 was clearly in-tended to prevent the undue postponement of trials by placing a signifi-cant restriction on the power of the court to permit amendment ofpleadings "on or after the day first fixed for the trial of the action." Anamendment of pleadings on the date of trial, more often than not, re-sults in the postponement of the trial. In this connection it would notbe inappropriate to refer to the observations of Sansoni, J. (as he thenwas) in Daryanani v Eastern Silk Emporium Ltd.,(1> “I have also alwaysunderstood the rule to be that an amendment should be applied for asearly as possible and as soon as it becomes apparent that it would benecessary. Only in this way can unnecessary delays be avoided. Ap-plications for amendment at the trial have always been discouraged,because the other party has been put to the expense and trouble ofgetting ready for trial." In the same case, in a separate judgment, L.B.
de Silva, J., made similar observations "convenience and the
interests of justice demand that an amendment of pleadings should be
made as early as possibleIt has been the normal practice of
our courts to allow such amendments before the hearing." (at page538). The learned Judges were dealing with section 93 prior to itsamendment, and these observations were made in the context of thesubmission of counsel that an amendment of pleadings is not permit-ted prior to the hearing of the action. The relevance of those observa-tions for present purposes is that they indicate the rationale underlyingthe amendment introduced by Act No. 9 of 1991. While the Court ear-lier "discouraged” amendment of pleadings on the date of trial. Nowthe court is precluded from allowing such amendments save on theground postulated in the subsection.
Turning now to the averments in the amended answer, it is clearthat the defendant was well aware of the fact that the plaintiff was livingin adultery at the time the answer was filed, but she has chosen not torely on that ground in her answer. After the second date of trial, she isseeking to amend the answer by including a cause of action based onadultery. In these circumstances, the conclusion of the Court of Ap-peal, that the defendant is guilty of laches and that the amended an-swer has to be rejected in terms of section 93 (2) (as amended) mustbe affirmed.
Mr. D.R.P. Gunatilake for the Defendant-Appellant strenuously con-tended that the Defendant refrained from pleading adultery in the an-swer as her intention was to save the marriage in the interest of thechildren. Her intentions were no doubt laudable and deserving of sym-pathy, but if such a plea is admissible the purpose of the amendmentwould, to a great extent, be defeated.
For these reasons, the appeal fails and is dismissed, but without costs.KULATUNGA, J. -1 agree.
RAMANATHAN, J. -1 agree.
KURUPPUARACHCHI v. ANDREAS