Abeywardena v. Eugmahamy
ABEYWARDENA AND OTHERS
v.EUGINAHAMY AND OTHERS
COURT OF APPEAL
L H. DE ALWIS, J. AND T D G DE ALWIS. J.
C A. APPLICATION No LA 138/81. D C NEGOMBO No. 2160/LJULY 9. 1984
Pleadings – Amendment of plaint – Belated application depriving defendants of plea ofprescription
The plaintiffs owned a strip of land which served as access to their land. The defendantswho owned the adjoining lands acting jointly and in concert commenced using this stripas access to their respective lands from about 28 2.1970 and disputed plaintiffs' titleto it The plaintiffs filed action on 10.12.1975. After the Administration cf Justice(Amendment) Law No. 25 of 1975 came into operation they filed an amended plainton 23 12 76 on the same lines as their original plaint. The defendants filed answer on15 7 1977 wherein they did not deny the title of the plaintiffs to the said strip of landbut claimed the right to use it by prescription. On 16.7.79 the plaintiffs moved toamend their plaint by pleading more fully their title. The defendants did not object andthe application was allowed on terms. The amended plaint was filed on 2.12.1980 andon 10.9 81 the defendants objected to it on the ground that acceptance of theamended plaint will deprive them of their plea of prescription. On 30.9.81 order wasdelivered disallowing the amendment.
By the amendment the plaintiffs were not seeking to widen the scope or alter thecharacter of the action. No new cause of action was averred. The plaintiffs were merelyseeking to elucidate their title which they had claimed in their original plaint and theamendments did not affect the plea of prescription. Belatedness of the application foramendment is not a ground for refusing the application.
Cases referred to :
Senevirame v. Candappa (1917) 20 NLR 60.
Punchimahattmaya. Memke and Others v Ratnayake and Others 18 CLW 18
Waduganathan Chettiyar v Sena Abdul Cassim (1952) 54 NLR 185.
APPEAL with leave from order of the District Court. Negombo.
E R S R Coomaraswamy P C with Rohan de Alwis for petitioner.Defendants-respondents absent and unrepresented
Cur. adv. vult.
Sri Lanka Law Reports
 2 SnL. R.
August 10. 1 984.
L. H. DE ALWIS, J.
This is an appeal by the plaintiffs-petitioners, with the leave of thisCourt first obtained, from the order of the District Judge of Negombodisallowing the amended plaint filed on 2.11.1980.
The plaintiffs originally filed plaint on 10.12.75 averring that theyare the owners of the land described in schedule 'A' to the plaint andthat the 4 defendants claim to be entitled to the lands described inschedules B to D to the plaint, which adjoin their land. They state thatthey are the owners of a strip of land described in schedule E to theplaint which gave them access to their main land. Their complaint wasthat the defendants wrongfully, unlawfully, forcibly, jointly and inconcert commenced using this strip of land as access to theirrespective lands from about 28.2.1970 and are disputing anddenying the plaintiffs' title to the said strip of land. They prayed, interalia, for a declaration of title to the said strip of land and for adeclaration that the defendants are not entitled to use the said strip ofland as a roadway to their respective lands.
After the Administration of Justice (Amendment) Law No. 25 of1975 came into operation, the plaintiffs filed an amended plaint dated23.12.76 on the same lines as their original plaint.
The defendants-respondents filed answer on 15.7.1977 whereinthey did not deny the title of the plaintiffs-petitioners to the strip ofland but claimed prescriptive user of it. When the case came on fortrial on 16.7.79 the plaintiffs-petitioners moved to amend their plaintin order to plead their title more fully in accordance with thedocuments of title that had been listed. The defendants-respondentsdid not object to the motion to amend the plaint and the applicationwas allowed on terms on 16.7.79. The amended plaint was duly filedon 2.12.80 and on 10.9.81 the defendants objected to the amendedplaint on the ground that the action had been prescribed before theamended plaint was filed and that acceptance of the amended plaintwould relate back to the date of the original plaint thus depriving themof taking up the plea of prescription which would cause themprejudice. The learned Judge delivered order on 30.9.81 agreeingwith the contention of the defendants' counsel and disallowed theamendment of the plaint, dated 2.12.80 He directed that trial
Abeywardena v Euginahamy (L. H De Ams, J.)
proceed on the amended plaint of 23.12.76 filed under the provisionsof the Administration of Justice Law. It is from this order that theplaintiffs now seek to appeal.
By the amendment the plaintiffs do not seek to widen the scope oralter the character of the action. No new cause of action is averred. Allthat the plaintiffs did was to plead their title to the strip of landdescribed in schedule E, when the defendant's Counsel on 16.7.79submitted that they had not done so. It is true that the first plaint wasfiled as far back as 10.1 2.75 and the second amended plaint was filedonly on 2.11.80'. But the lateness of the application for amendment isnot a ground for refusing the application. In Seneviratne v. Candappa
Shaw, J., said :
"However negligent or careless may have been the first omission,and however late the proposed amendment, the amendment shouldbe allowed if it can be made without injustice to the other side".
In Punchimahattmaya, Menike and Others v. Ratnayake and Others
it was held that an amendment bona fide desired in order toelucidate the cases the parties wish to put forward should be allowed,even though the parties have been negligent or careless in stating theircases. The matter of the belatedness of a proposed amendment is amatter that affects the question of terms in regard to costs andpostponement.
In the present case the amendment became necessary in view ofthe submission made by Counsel for the respondents that particularsof the plaintiffs' title to the land in schedule E had not been specified. Itwas in order to elucidate their title that the plaintiffs amended theirplaint and they did so, on payment of costs since the trial had to bepostponed.
The learned trial Judge has refused the amendment for the reasonthat the alleged unlawful use of the roadway as stated in the firstplaint, commenced on 28.2.70 and that if the amendment of2 11.80 were allowed, it would relate back to the date of the firstplaint filed on 10.12.75 and deprive the defendants of raising the pleathat they had prescribed to the strip of land in the meantime, andcause them prejudice. But in the very first plaint filed on 10.12.75 theplaintiffs had pleaded that they were entitled to the disputed strip ofland and claimed ownership to it. All that they sought to do by the
Sri Lanka Law Reports
 2 Sri L. R.
amendment was to give full particulars of their title to the land indispute. No new cause of action was raised to take the case out ofprescription.
In Waduganathan Chettiyar v. Sena Abdul Cassim (3) it was heldthat a court will refuse to allow a plaint to be amended so as toinclude a new cause of action if such amendment, by its relation backto the date of the original plaint, is prejudicial to a plea of prescriptionwhich may be raised by the defendant in respect of the new cause ofaction. But that is not the case here.
In my view the learned Judge was in error in disallowing theamendment. I therefore set aside the order of the learned Judge andallow the amendment. There will be no costs of appeal in view of thebelatedness of the amendment.
T. D. G. DE ALWIS, J. – I agree.
ABEYWARDENA AND OTHERS v. EUGINAHAMY AND OTHERS