Surangi v Rodrigo (Gamini Amaratunga,- J.)
RODRIGOCOURT OF APPEALAMARATUNGA, J.
D.C. COLOMBO CASE NO. 21698/DFEBRUARY 17, 2003
Civil Procedure code S. 40(e) – Has the Court jurisdiction to grant reliefs notprayed for in the prayer to the Plaint.
By her plaint the plaintiff – petitioner claimed a divorce on malicious deser-tion/constructive malicious desertion. She also averred that a cause of actionhas accrued to her to recover damages of Rs. 700,000/- by way of permanentalimony. The defendant respondent contended in his answer that, the plaintiffhas no right to claim damages. The plaintiff after her evidence was led, raisedan issue whether the plaintiff was entitled to permanent alimony in a sum ofRs. 700,000/-. This was objected to on the basis that there is no prayer to per-manent alimony and no issue had been framed relating to payment of alimo-ny. This was upheld.
On leave being sought:
No court is entitled to or has jurisdiction to grant reliefs to a party whichare not prayed for in the prayer to the plaint.
The plaintiff has intended to recover Rs. 700,000/- from the defendant .as damages and she has deliberately and unequivocally prayed fordamages in prayer "B". Her intention is to use the damages so recov-ered as permanent alimony. Therefore her claim is not a claim foralimony at all.
In the absence of a prayer for alimony, the Court was correct in refus-ing to allow the petitioner to frame an issue relating to alimony.
APPLICATION for Leave to appeal.
1.. Sirinivasa Thero v Sudassi Thero- 63 NLR 312. Martin Singho v Kularatne – CA 248/95 CAM 18.12.96
Sri Lanka Law Reports
120031 3 Sri L.R
Wijesuriya v Senaratne – (1997) – 2 Sri LR 323
Dinoris Appuhamy v Sopinona – 77 NLR 188 (Distinguished)
Pubudu de Alwis for the petitioner.
Rohan Sahabandu for respondent.
March 17, 2003
GAMINI AMARATUNGA, J.This is an application for leave to appeal against an order made 01by the learned Additional District Judge of Colombo refusing toaccept four issues framed on behalf of the plaintiff-petitioner in thecourse of the trial into her action filed to obtain a divorce. By herplaint she has claimed a divorce on the basis that her husband hasmaliciously deserted her and/or that he is guilty of constructivemalicious desertion. In paragraph 15 of the plaint the petitioner hasstated that a cause of action has accrued to her to recover dam-ages in a sum of Rs. 700,000/- from the defendant by way of per-manent alimony necessary for her maintenance. In paragraph 'B' of 10the prayer to the plaint she has prayed for damages in a sum of Rs.700,000/- for the pain of mind and the (mental) unrest caused toher due to the conduct of the defendant.
In the body of the plaint she had alleged that the defendant is aperson who has homosexual tendencies; shortly after marriage heleft her alone at home and went in search of his gay partners andsometimes spent the whole day with them without caring for her;when she was expecting a child he compelled her to manuallymove two tractor loads of earth to the rear compound; he neverallowed her to rest and always compelled her to attend to the work 20at home; when she started bleeding as a result of her work (manu-ally moving earth from one place to the other) he neglected to takeher for medical treatment until her condition became serious; aftershe was admitted to hospital he did not come to see her and on theday she was discharged from hospital he did not come to take herto the matrimonial home and for this reason she had to go to herparent's house with them. She has also alleged that when she wasat their parent's home they sent messages to him to come and takeher to his house but he did not respond.
CASurangi v Rodrigo (Gamini Amaratunga, J.)37
In .his answer the defendant has specifically taken up the posi-tion that in an action for divorce the plaintiff has no right in law toclaim damages for mental pain and unrest. Even after this positionwas taken up in the answer the plaintiff has not taken steps toamend the prayer to her plaint to make it a claim for alimonyinstead of damages. No issue was framed whether the plaintiff hasany right to obtain any sum of money by way of alimony or dam-ages.
At the trial the plaintiff testified. In her evidence she stated thatshe claims a sum of Rs. 700,000/- as permanent alimony. In cross-examination not a single word was asked perhaps with reasons onbehalf of the defendant about her claim regarding permanentalimony.
After her evidence was over the plaintiff's Counsel suggested fourmore issues as follows :
No. 13:Whether the defendant conducted himself in the
manner set out in paragraph 5,6,7 and 8 of theplaint?
No. 14 :Whether the plaintiff had to leave' her matrimonial
home on 12.1.2002 due to the conduct of the defen-dant referred to in above issue No 13 ?
No. 15 A : If the above issue is answered in the affirmative is thedefendant guilty of constructive malicious desertion?
No. 15 B : If the above issue is answered in the affirmative is theplaintiff entitled to obtain a decree for divorce in herfavour ?
No. 16 :Is the plaintiff entitled to permanent alimony in a sum
of Rs. 700,000/-
On behalf of the defendant, Counsel objected to the issue relat-ing to permanent alimony on the basis that there is no prayer forpermanent alimony and no issue had been framed relating to per-manent alimony. The Counsel has said that the plaintiff has beencross-examined on the basis that there was no issue relating topermanent alimony. The learned District Judge has rejected allissues i.e. issue 13 to 16. The learned Counsel for the petitioner
Sri Lanka Law Reports
[2003) 3 Sri L.R
complained that although the defendant's Counsel did not object toissues 13,14,15A and 15B but confined his objections to issue No16, the learned Judge has rejected all issues.
With regard to issue No 16 relating to permanent alimony thelearned Judge has held that the plaintiff has not initially framed anissue relating to alimony and by attempting to frame an issue afterthe plaintiff's evidence was concluded, the plaintiff attempts, with-out making a formal amendment to the plaint to achieve the sameresult by way of an issue. From this I presume that what.the learnedJudge meant was that without amending the prayer relating to dam-ages to read as alimony the plaintiff attempts to achieve his objectby bringing in an issue relating to alimony.
The learned counsel for the petitioner submitted that issues arenot restricted to pleadings and cited several cases in support.There is no question about the correctness of this legal position.What is material to consider is whether the mere framing of anissue without amending the prayer would help the petitioner.Section 40(e) of the- Civil Procedure Code enacts that the plaintshall contain a demand of the relief which the plaintiff claims. Thisis the prayer. No court is entitled or has jurisdiction to grant reliefsto a party which are not prayed for in' the prayer to the plaint.Sirinivasa Thero v Sudassi ThercP Martin Singho v KularatnaWand Wijesuriya v Senaratna <3).
The learned Counsel for the petitioner submitted that the termdamages in prayer has been inadvertently used for the term alimo-ny and this midiscription should not prejudice the claim of the peti-tioner. He cited the decision in Dinoris Appuhamy v SopinonaWwhere the Court held that the plaintiff's reference in the plaint to apartnership in the context was a reference to co-ownership and thatthe misdescription in the pleadings could not prevent the framing ofissues on the basis of the true character of the action.
However in this case the question arises whether the term dam-ages has been inadvertently used to mean alimony. In order toascertain this one has to closely examine the pleadings. In para-graph 15 of the plaint it is stated that a cause of action has accruedto the plaintiff to recover damages in a sum of Rs. 700,000/- as per-manent alimony to be used for the expenses necessary for her
Surangi v Rodrigo (Gamini Amaratunga, J.)
maintenance. This paragraph very clearly shows that the plaintiffintended to recover Rs. 700,000/- as damages to be used as per-manent alimony. Then the plaintiff in prayer 'B‘ goes on to state whyand on what basis she claim Rs. 700,000/- as damages. She hasprayed for damages in a sum of Rs. 700,000/- for pain of mind andthe unrest caused her due to the aforesaid conduct and the behav-iour of the defendant. What is this aforesaid conduct and behav-iour? In the earlier part of this order I have fully set out the allega-tions made by her about the conduct and the behaviour of the 110defendant. She has therefore intended to recover Rs. 700,000/-.from the defendant as damages and she has deliberately andunequivocally prayed for damages in prayer 'B'. In law she is notentitled to claim such damages in these proceedings. Therefore herprayer is misconceived in law. Her intention is to use the damagesso recovered as permanent alimony. Therefore her claim is not aclaim for alimony at all. In these circumstances in the absence of aprayer for alimony, the learned District Judge was correct in refus-ing to allow the plaintiff to frame an issue relating to alimony.Therefore the learned Judge's ruling as far as it relates to issue No. 12016 is affirmed. Issues No. 13,14,15A and 15B are more detailedissues relevant to issues already framed. The learned counsel forthe respondent did not seriously challenge those issues. ThereforeI set aside that part of the learned Judge's order relating to issueNo 13,14,15A and 15B and direct him to accept those issues.Subject to that order leave to appeal is refused and the applicationis dismissed without costs.
Leave to Appeal refused, subject to variation.
SURANGI v. RODRIGO