Was the damage caused to the plaintiff's building referred toin issue 3 above caused by one or more or all of the acts oromissions set out in paragraph 10 of the plaint?
(a) If the above issues 1 -5 are answered in favour of the
plaintiff, is the plaintiff entitled to recover damages?
If one (above) is answered in the affirmative what quantityof damages is the plaintiff-entitled to?
At the time of the said fire was the southern portion of the saidbuilding rented out to various tenants?
Was the plaintiff deprived of the said rents, by reason of thefact that the said portions let to the said tenants weredestroyed, by the aforesaid fire?
If issues numbered (1) to (5) and (7) to (8) are answered infavour of the plaintiff, is the plaintiff entitled to recoverdamages?
If issue (9) is answered in the affirmative what damages is theplaintiff entitled to recover?
Did the said fire on the 4th October 1980 take placeaccidentally?
Was the said fire not expeditiously extinguished and preventedfrom spreading by reason of the incompetency and or lack ofnecessary equipment on the part of the Fire Brigade of theColombo Municipal Council?
Was the loss and damage alleged in the plaint caused byand/or contributed to by the plaintiff or its predecessorsbuilding upon and using the fire gap and the space betweenthe buildings referred to in the plaint?
Is the occurrence of the aforesaid fire and/or its spreadingattributable to the defendant?
(1 7) If issues Nos. 1 2 and 1 5 or any one of them are answered inthe negative, is the plaintiff entitled to recover any damages?
After the' framing of the issues the hearing of the evidencecommenced and plaintiff called and concluded the evidence of theGovernment Analyst, who testified to the destruction and damagecaused to the building belonging to the plaintiff. Thereafter theevidence of the other witnesses was also called by the plaintiff andconcluded. Throughout the evidence of the said witnesses both inexamination in chief and cross examination reference was made to theMackinnon building belonging to the plaintiff as one entity and withoutany mention of any assessment number and the cross-examination ofwitnesses was done on the basis that the damages claimed were inrespect of the plaintiff's building which is adjacent to the defendant'sbuilding.
On 7.3.1 985, the plaintiff called one Abeynayake, a Director of theplaintiff company to depose to the title to plaintiff's building. In thecourse of his evidence Abeynayake said ''….the buildings at these
premises consist of premises with several assessment numbers
These buildings are situated adjoining the premises of Grindlays Bank"(the defendant). The schedule to the deeds of title, produced by him,referred to the allotment of land with the buildings thereon bearingseveral assessment numbers.
When this evidence was given counsel for the defandant invited theattention of court to the plaint and stated that the plaintiff claimedcompensation only in respect of No. 4, Layden Bastian Road and notin respect of ail the premises affected by the fire. In reply counsel forthe plaintiff stated that an omission had been made and that severalassessment numbers are included in the building in respect of whichcompensation is claimed. He said that the compensation is claimed inrespect of the entire building and that those numbers have beenomitted by an oversight. He requested permission to amend the
material description of the property as there had been an oversight inthis respect. The plaintiff was granted a date for filing amended plaint.Thg amended plaint was tendered on 14.3.85. It said that plaintiff'sbuilding is fully described as subject matter of acquisition in theGazette of 17.6.1980.
The defendant objected to the acceptance by the court of. theamended plaint. By its order dated 2nd April 1985. the District Judgerejected the amended plaint on the ground that the plaintiff hasclaimed compensation in the original plaint only in respect of one partof the larger building, referred to in the amended plaint. He said that-
"The plaintiff could have instituted action by including thepremises numbers along Layden Bastian Road, the premisesnumbers along York Street and premises along York Arcade Road,that is for claiming compensation for the damages caused to thislarge building. But he selected to claim compensation only inrespect of premises No. 4, Layden Bastian Road—. Compensationother than for premises No. 4. Layden Bastian Road, cannot beclaimed, for rest of the premises now, as the fire had broken up inOctober 1 980 and the present application is prescribed under theprovisions of the Prescription Ordinance. If the amended plaint isallowed the plaintiff will be able to recover compensation on aprescribed application. There is no provision for the plaintiff toamend this plaint contrary to the provisions of the PrescriptionOrdinance."
The plaintiff appealed from the said order of the District Judge to theCourt of Appeal. The Court of Appeal by its judgment dated 10thSeptember 1982, affirmed the order of the District Judge anddirected that the trial do continue and proceed on the footing of theclaim in the original plaint and dismissed the appeal with costs. Theplaintiff has with the leave of this court, preferred this appeal to thiscourt.
The power to amend pleadings is granted by section 93 of the CivilProcedure Code. It provides that-
"At any hearing of the action, or any time in the presence of, or afterreasonable notice to, all the parties to the action before finaljudgment, the court shall have full power to amend in its discretion,and upon such terms as to costs and postponement of the day tor
filing answer or replication or for hearing of cause, or otherwise, asit may think fit, all pleadings and processes in the action, by way of
addition, or of alterations or of omission" This section gives
ample power to amend pleadings.
Section 146 (1) of the Civil Procedure Code provides that-
“if the parties are agreed as to the question of fact or of law to
be decided between them, they may state the same in the form ofan issue, and the court shall proceed to determine the same..
Section 146 (2) provides that—
" if the parties, however, are not so agreed, the court shall.
upon the allegations made in the plaint… ascertain upon whatmaterial propositions of fact or of law the parties are at variance,and shall thereupon'proceed to record the issue on which the rightdecision of the case appears to the court to depend."
The Privy Council has stressed that-"the case must be tried upon the issues on which the rightdecision of the case appears to the court to depend and it is wellsettled that the framing of such issue is not restricted by thepleadings'. See section 146 of the Code, Attorney-General v. Smith(1) and Silva v. Abeysekera (2), Bank of Ceylon Jaffna v. ChelhahPillai (3)."
The amendment of pleadings is in the discretion of the court. Thediscretion must however be exercised according to judicial principlesand not in arbitrary, vague or fanciful manner so as to cause injusticeto the opposite side. The test is whether in order to effectivelyadjudicate upon the dispute between the parties, amendment of thepleadings is necessary. It must be borne in mind that—
"All rules of court are nothing but provisions intended to securethe proper administration of justice and it is therefore essential thatthey should be made to serve and be subordinate to that purpose,so that full powers of amendment must be enjoyed and shouldalways be liberally exercised." Ma Shwe Mya v. Maung Mohnaung
The main considerations to be borne in mind in exercising thediscretion whether to allow or refuse the amendment are:
(a) that the rules of procedure have no other aim than to facilitatethe task of administering justice.
{b) that multiplicity of suits should be avoided. – (1857)-6 MooreInd. App. 393 at 41 1.
As a general rule leave to amend ought not to be. refused unless theapplicant is acting mala fide and the blunder has resulted in injustice tothe other party which cannot be compensated with costs. The courtshould allow the amendment of a pleading where there has been aclerical error or a bona fide wrong description of property. Anamendment merely clarifying the position put forward in a pleadingmust be allowed.
The liberal principles which guide the exercise of discretion inallowing amendments have been laid down in decisions of the PrivyCouncil and of the Supreme Court.' Multiplicity of proceedings beingavoided is one of the criteria. Amendments which do not alter thefundamental character of the action or the foundation on which thesuit is based are readily granted,, while care is taken to see thatinjustice and prejudice of an irremediable character are not inflicted onthe opposite party under pretence of amendment of pleadings. Thecourt must be guided by the rule of justice. It is no doubt true that thecourt would as a rule, decline to allow amendments, if a fresh suit onthe amended claim would be barred by limitation on the date of theapplication. But that is a factor to be taken into account in the exercise'of the discretion as to whether amendment should be ordered', anddoes not effect the power of the court to order it, if that is required inthe interests of justice,. In Charan Des v. Amir Khan (5) the PrivyCouncil has emphasised-
"that there was full power to make the amendment cannot bedisputed and though such power should not as a rule be exercisedwhere the effect is to take away from a defendant a legal right whichhas accrued to him by lapse of time, yet there are cases where suchconsiderations are outweighed by the special circumstances of thecase."
Provisions for the amendment of pleadings are intended for promotingthe ends of justice and not for defeating them. The object of rules ofprocedure is to decide the rights of the parties and not to punish themfor their mistakes or shortcomings. A party cannot be refused justrelief merely because of some mistake, negligence or inadvertence.However negligent or careless may have been the first omission, andhowever late the proposed amendment, the amendment may beallowed if it can be made without injustice to the other side.
In Weldon y, Neal (6) Lord Esher. M.R. said-
"We must act on the settled rule of practice, which is thatamendments are not admissible when they prejudice the rights ofthe opposite party as existing at the date of such amendments. If anamendment were allowed setting up a cause of action which, if thewrit were issued in respect thereof at the date of the amendment,would be barred by the statute of limitations, it would be allowing theplaintiff to take advantage of her former writ to defeat the statuteand taking away an existing right from the defendant, a proceedingwhich, as a general rule, would be. in my opinion, improper andunjust. Under very peculiar circumstances the court might perhapshave power to allow such an amendment but certainly as a generalrule it will not do so."
These words were used in a case where the plaintiff had brought aslander action, had been non-suited, and had then obtained from theCourt of Appeal an order for a new trial, and then sought to amend bysetting up false imprisonment, assault and other causes of action. Itwas therefore a clear case where the plaintiff was trying to set up notonly a cause of action, but several new causes of action. Commentingon Lord Esher's statement. Holyroyd Pearce. L.J. said-
"In my view, the dictum of Lord Esher was not intended to laydown a rule that no material averment could ever be amended oradded to after the period of limitation had expired. When he said acause of action, he was, I think, referring to what is popularly knownas a cause of action, namely a claim made on a certain basis. By 'anew cause of action', he meant a new claim made on a new basis "- Robinson v. Unicas Property Corporation (7).
No amendment will generally be allowed to introduce a new set ofideas to the prejudice of any right acquired by any party by lapse oftime.
How does the instant case stand on the above principles? Does theamendment introduce a new cause of action or a new case? The suitis founded on negligence-damage caused to plaintiff's building as aresult of the negligence of the defendant. Issues (m), (v), (vii), (vm), (ix)and (x) refer to the "plaintiff's building". The plaintiff■ described thebuilding which is alleged in the plaint to have been destroyed by thefire, which originated in the defendant's building. In paragraph 4 of theplaint, the plaintiff sets out how it became the owner of the saidbuilding. It reads thus:
"That under and by virtue of Deed No. 1372 dated 30.9.1952attested by G. N. S. de Saram, N.P., and by Deed No. 1203,attested by B. M. Amarasekera, N.P., dated 6th August 1966 andby prescriptive possession the plaintiff became the lawful owner andproprietor of all the land and premises with the buildings standingthereon bearing assessment No. 4, Layden Bastian Road, Fort,Colombo."
By the proposed amendment, the said paragraph 4 of the plaint issought to be amended to read thus:
"That under and by virtue of Deed No. 1372 dated 30.9.1952attested by G. N. S. de Saram, N.P., and deed No. 1203 attestedby B. M. Amarasekera, N.P., dated the 6th day of August, 1966and by prescriptive possession the plaintiff became the lawful ownerand proprietor of all that land and premises with the buildingsstanding thereon bearing assessment Nos. 1, 3, 5, 7, 9, 11, 1 9(with the sub-divisions), 21, 23, 25, 27 (with its sub-divisions) YorkStreet Nos. 4 & 6, Layden Bastian Road, and Nos. 6 & 8, YorkArcade Road, situated at Fort, Colombo, which said land andpremises are in the schedule, hereto more fully described."
The schedule carried by the amended plaint sets out very fully theplaintiff's land, and premises by reference to metes and bounds andsurvey plans. The amended plaint seeks to correct the erroneousdescription of the building/buildings and premises, to which theplaintiff became entitled on the deeds referred to in paragraph 4 of theplaint and portions of which are alleged to have been damaged ordestroyed by the fire. Apart from that amendment, all the otherallegations remain the same. The quantification of the damagesuffered by plaintiff remains unaltered. The relief prayed for both in theplaint and the amended plaint is "judgment in the aggregate sum ofRs. 12,320,000 with legal interest." On these facts, in my view, theamendment does not introduce a new cause of action or a new case.The tort which formed the cause of action on which the action isbased remains identical. The Court of Appeal has erroneouslyassumed that-
"In the present case the plaintiff's intention is clearly to claimdamages for destruction and damage caused by fire to the plaintiff'sbuilding No. 4, Layden Bastian Road and no more, while theamendment seeks to substitute in place of that one building, otherbuildings damaged by the fire along with that building."
the assumption that there is more than one building is based on amisconception. Physically there is only one building, one entity, whichfor purposes of assessment for rates, the local authority has dividedinto separate premises. Elements such as fire or floods do rot. whenthey cause damage or destruction, go by such artificial divisions of abuilding into numbered premises. The plaintiff had only one cause ofaction against the defendant for the recovery of the total damagesustained by it on account of the defendant's negligence and notseveral causes of action in respect of damage or destruction of eachof the assessed premises in the building. The Court of Appeal haserPed in taking the view that damage to each portion of the buildingrepresented by an assessment number gives rise to a distinct andseparate cause of action.
Section 34 (1) of the Civil Procedure Code mandates that —
"every action shall include the whole of the claim which theplaintiff is entitled to make in respect of the cause of action".
Section 34 (2) provides that "if the plaintiff omits to sue in respect of° or intentionally relinquishes any portion of his claim, he shall notafterwards sue in respect of the portion so omitted orrelinquished."
The bar of suits applies only where a decree has been passed in theprevious suit. The rule does not preclude the amendment of plaint bythe addition of the claim which had been omitted-Jagat Singh v.Sangat Singh (8). Hence it is open to plaintiff to amend his plaintby the addition of any claim which he is entitled to make in respect ofthe cause of action pleaded in the plaint. The most that may be said ofthe original plaint, in this case is that the plaintiff had inadvertentlyfailed to relate the total sum of compensation claimed by him to all thepremises affected by the fire. By suitable amendment of the plaint thisomission may be rectified.
The judgment of the Court of Appeal is vitiated by thismisconception that the plaintiff is seeking to plead by way oramendment of the plaint, one or more causes of action which is or arestatute barred.
r,t It is to be noted that issues 3 and 5 which had been accepted bycourt without objection by the defendant and on which the trialproceeded relate to the damage caused to "the plaintiff's building."The issues do not identify plaintiff's building as that portion bearing
assessment number 4, Layden Bastian Road. The amended plaintdescribes very fully and accurately the plaintiff's building, by referenceto the several assessment numbers which the building bore in additionto number 4, Layden Bastian Road with the boundaries enclosing thebuilding.
The Court of Appeal has held that the amendment is not bona fidedesired. There is absolutely no warrant for this finding. The wholecourse of the proceedings militates against the suggestion of malafides on the part of the plaintiff in seeking to amend the plaint. It isevident that the mistake in the description of plaintiff's building in theplaint was discovered by all parties concerned only when MohanAbeysekera stated in evidence that the building consists-of premiseswith several assessment numbers. It was then that counsel fordefendant invited the attention of the court to the plaint and statedthat "the plaintiff has claimed compensation, only in respect of No. 4,Layden Bastian Road, and not in respect of all the premises affectedby the fire. "Then counsel for plaintiff replied that "several.assessmentnumbers are included in the building in respect of which compensationis claimed and that these numbers had been omitted by an oversight."
It was consequent to this discovery at that stage of the error in thedescription of the premises affected by the fire that plaintiff moved tofile amended plaint to describe, correctly the plaintiff's premises thatwere affected by the fire. In my view there is no foundation for theCourt of Appeal finding that the amendment of the description of theaffected property is not bona fide desired.
That an amendment of the plaint, has the effect of depriving thedefendant of his right to plead limitation is only a factor to be taxeninto account in the exercise of the court's discretion as to whether theamendment should be allowed and does not affect the power of theCourt to order it, if that is required in the interests of justice wasstressed in De Alwis v. De Alwis (9).
In my view this seems to me pre-eminently a case for allowing theamendment. Both the Court of Appeal and the District Court havefailed to address themselves to the decisive question whether theamendment is required in the interests of justice. The amendmentsought is necessary for the right decision of the case-the extent ofplaintiff's property which was damaged or destroyed by the fire inquestion for which defendant was responsible. The question is
involved in the plaint as originally framed. Though the property wasreferred to in the plaint and the damage quantified, the property hasnot been described correctly. The amended plaint describes fully theplaintiff's building in respect of whose damage or destruction, theplaintiff is claiming in the plaint a sum of Rs. 10.250.000 ascompensation.
Counsel for the plaintiff cited the judgment of the Lahore High Courtin Jalal Din v. Quaim Din (10). In that case which was a pre-emptionsuit, the plaintiff inadvertently omitted to mention in the plaint aportion of the property claimed. He was subsequently allowed toamend his plaint after the expiry of the ordinary period of limitation.The court held that everything pointed to the conclusion that it wasmerely a case of inadvertence and misdescription of property. It alsoheld that as the amendment did not alter the character of the suit orintroduce a different cause of action it should be allowed, even afterthe lapse of the period of limitation, if the defects in the plaint were notintentional. Counsel also referred to the case of Shree Narain v.Krishanlal (11). where it was held that where the amendment did notseek to change the subject-matter, but sought only to alter thedescription of the property in dispute, amendment should be allowed.In that case plaintiff complained of encroachment upon a piece of land185ft x 24ft which formed part of plot No. 1607. The land in disputewas shown as A, B. C. D in the sketch attached to the plaint. In thecourse of the trial, it was found that the land in dispute did not formpart of plot No. 1607 but 1610. of which also the plaintiff was theowner. When the plaintiff moved to amend the plaint to have plot No.16 TO substituted for plot No. 1607, it was objected that theamendment substituted a new subject-matter but the court allowedthe amendment on the ground that the subject-matter of the suit wasthe land A, B. C. D shown in the sketch and that the number of the plothad been mentioned only in connection with the description of theland in suit and as plaintiff was the owner of both plots 1607 and£610. the amendment should be allowed. On application of thea principles of-amendment, which underly the decisions in these cases,che amendment sought by the plaintiff has to be allowed.
amended plaint and to take consequent steps according to law.- Parties will bear their own costs of the inquiry in the District Court butplaintiff-appellant will be entitled to the costs of the Court of Appealand of this court. As this is an old case. I also direct that the trial of thecase should be proceeded with expeditiously.
WANASUNDERA, J. – I agree.
ATUKORALE, J. – I agree.
Appeal allowed.