004-NLR-NLR-V-67-BARAMMANA-VIPASSI-NAYAKE-THERO-Appellant-and-URAPOLA-JANARATNA-THERO-and-3-ot.pdf
1963Present; Sansoni, J., and H. N. G. Fernando, J.BARAMMANA VIPASSI NAYAKE THERO, Appellant, andURAPOLA JINARATANA THERO and 3 others,
Respondents
S. G. 108/61 (Inty.) — D. G. Kandy, 6112/L
Amendment of pleadings—Sxpe.
The plaintiff sued to be declared entitled to the right of residence in a certainVihara and the control and possession of the Vihara and its temporalities.When he was giving evidence on the first date of hearing he made certainadmissions in consequence of which ho sought, before the next date of hearing,to amend his plaint. The proposed amendments effected a change in thedevolution of title, but the cause of action was the same and the parties werethe same.
Held, that the amendment should be allowed.
“ .•. the object of the rules governing amendments is to obtain a correct
issue between the parties, just as the object of litigation is to adjudicate onreal and not hypothetical matters in issue. If a mistake has been made in anoriginal pleading, there is no objection to a correction being made in order toachieve these purposes, provided no injustice is done to the other party, whowould normally receive adequate compensation in an order for cost3. ”
-A-PPEAL from an order of the District Court, Kandy.
H. W. Jayewardene, Q.G. with S. S. Basnayalce, for the Plaintiff-Appellant .
Vernon Jonklaas, for the Defendants-Respondents.
Gur. adv. vult.
November 11, 1963. Sansoni, J.—
This is an appeal from an order refusing the plaintiff’s application toamend his plaint.
The plaintiff asked to be declared entitled to the right of residence inKiriwaula Vihara and the control and possession of the Vihara and itstemporalities, and that the defendants be ejected from certain landsdescribed in the Schedule to the plaint. He pleaded that SaranankaraMaha Thero was the former Viharadhipathi, and that on his death in1956 the plaintiff as his senior pupil succeeded him. He alleged that thefour defendants, who are the pupils of one Sumana Thero who had beenplaced in possession of the Vihara by Saranankara Maha Thero, weredisputing his rights to this Vihara and its temporalities since the deathof Sumana Thero in 1959.
The defendants in their answer pleaded that Sumana Thero had beenappointed Viharadhipathi in 1922 by the dayakayas, and that on hisdeath in 1959 they appointed the 3rd defendant to succeed him. Theyalso pleaded that the plaintiff’s claim was barred by prescription.
When the plaintiff was giving evidence at the commencement of thetrial, he said under cross-examination that Weliwita Saranankara MahaThero (his tutor’s tutor) was Viharadhipathi of Gadaladeniya Vihara,Kjriwaula "Vihara, and certain other Viharas appurtenant to Gadala-deniya Vihara : that he died in 1893 leaing as his pupils MedankaraThero and Saranankara Maha Thero, both of whom were the plaintiff’stutors ; and that Medankara Thero who was the senior of the twobecaipe the Viharadhipathi and officiated as such till his death in 1921.
The plaintiff also said that Medankara and Saranankara had twopupils, Cuda Saranankara Thero and the plaintiff, the former of whomwas robed earlier than himself although they were ordained together.Cuda Saranankara, according to the plaintiff, became the Viharadhipathiof Algama Vihara, while the plaintiff claims that he is the Viharadhipathiof Gadaladeniya and Kdriwaula Viharas.
On these admissions it became obvious that Cuda Saranankara assenior pupil of Medankara would be the rightful incumbent of all thetemples belonging to this pedigree, unless he had abandoned his rightsto an^ of them. It also became clear that of the plaintiff’s two tutors,Medankara and not Saranankara would have been the de jure Viharadhi-pathi of Kiriwaula Vihara ; and that the plaintiff’s claim through thelatter could not be maintained, since it was the plaintiff’s case that thesuccession from the original Viharadhipathi was according to the rule ofSissiyanu sisiya paramparawa.
Before the next date of hearing, the plaintiff sought to amend hisplaint by pleading that of his two tutors, Medankara the senior tutorbecame the Viharadhipathi, and that although Cuda Saranankara wasthe senior pupil of Medankara, he abandoned his rights to Gadaladeniyaand Kiriwaula Viharas and waived his claim thereto in favour of theplaintiff. He also sought to plead that although he became the lawfulViharadhipathi after the death of Medankara, his tutor priest Saranan-kara controlled Gadaladeniya and Kiriwaula Viharas with his permissionand on his behalf.
The learned District Judge upheld the objections of the defendants tothe proposed amendment—
because there was a departure by the plaintiff from the facts
pleaded in the original plaint, and
because the application was not made in good faith and was an
attempt to bring the pleadings into line with the admissionsmade in cross-examination.
With, respect, I am unable to uphold the learned Judge's order whichloses sight of the important principle that the oLject of the rulesgoverning amendments is to obtain a correct issue between the parties,just as the object of litigation is to adjudicate on real and not hypothe-tical matters in issue. If a mistake has been made in an original p leading,there is no objection to a correction being made in order to achievethese purposes, provided no injustice is done to the other party, who wouldnormally receive adequate compensation in an order for costs.
The plaintiff’s original plea was that his tutor Saranankara was theViharadhipathi. By his amendment he seeks to plead that Saranan-kara was only de facto Viharadhipathi while Medankara was de jureViharadhipathi. Further, the plaintiff’s claim tc succeed Medankaracanonlj' succeed if he can show that his senior co-pupil Cuda Saranankarawaived or abandoned his rights. It is true that the proposed amend-ments effect a change in the devolution of title pleaded by the plaintiff,but most amendments would have some such effect. The cause ofaction is the same and the parties are the same. The error as to thecorrect status of Saranankara may possibly have arisen through a mistakeof law, for it was thought at one time that a “ controlling Viharadhipathi ”need not be the de jure Viharadhipathi. The proposed amendmentsseek to give the legal explanation of the factual position.
It should be said in the plaintiff’s favour that his legal advisors actedpromptly to set out what they conceive to be the correct position beforethe trial proceeded further. If they had delayed to suggest the proposedamendments, there might have been substance in the learned Judge’sview that the suggested amendments were not made in good faith. Noinjustice can be said to be done to the defendants by allowing theamendments, since they continue in possession of the temporalities towhich they lay claim, and it cannot be said that their rights as existingat the date of the amendment are prejudiced in any way.
I would therefore allow the appeal and direct that the amendedplaint dated 4th October 19G1 be accepted. Since the delay in makingthese amendments has put the defendants to expense which could havebeen avoided, the plaintiff should pay the costs of the abortive trialwithin two months of such costs being taxed: if he fails to do so,the amended plaint will be struck out. I make no order as to the costsof the inquiry held on 16th October 1961 or of this appeal.
H. N. G. Febnando, J.—I agree.