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Present: Shaw J.
CASSIM LEBBE v. NATCHIYA et al.1918.
233—C. B. Kegalla, ,15,091.
Amendment of pleadings—Allowed at any time if no injustice to other side.
" An amendment which is bona fide desired should be allowed atany period of the proceedings, if it can be allowed without injusticeto the other side, and in most cases conditions . as to costs willensure no prejudice being caused- to the other side. "
'J'HE facts appear from the judgment.
Cooray, for defendants, appellants.
V. Petera, for plaintiff, respondent.
November 21, 1918. Shaw J.—
In this case the plaintiff sued the defendants, who are the heirs ofone Idroos Lebbe Marikar, upon a promissory note made by Marikarin his lifetime. The defendants denied all knowledge of the makingof the note by the deceased, and put the plaintiff to the proof of thenote. When the case came on for trial, they desired to raise a newdefence, namely, that the note had been paid off by the deceased.
The reason that they wished to raise this new defence was that therehad been a discovery amongst the deceased’s papers of a documentwhich referred to a note, which was lost, having been discharged.
The Commissioner refused to allow any amendment to be made
raising this defence, or any issue being raised as to whether or notthe note had .been paid off. The reason that was given was thelateness of the application, which the Judge thought was due to thedefendants wishing to take the plaintiff by surprise at the trial bythe new defence. He, therefore, tried the case on the defence as itoriginally stood, and found that the deceased had made the notesued on and gave judgment for the plaintiff accordingly. Section814 and the following sections of the Civil Procedure Code relate topleadings in the Courts of Bequests. Section 815 provides that avariance between an allegation in a pleading and the proof shall bedisregarded as immaterial, unless such proof discloses a new causeof action, and section 816 provides that the Court shall, uponapplication, allow a pleading to be amended at any time beforetrial or during the trial if substantial justice will be promotedthereby. It provides that in the case of an amendment an adjourn-ment may be granted if it is necessary in the interest of the adverseparty, and that the Court may in its discretion, as a condition ofallowing an amendment, require the payment of costs. The generalrule with regard to amendments of pleadings which has been laiddown by this Court in previous cases is that an amendment whichis bona fide desired should be allowed at any period of'tbe proceed-ings, if it can be allowed without injustice to the other side, and inmost cases conditions as to costs will ensure no prejudice being causedto the other side. In the present case the defence sought to be raisedwas' a very substantial one, and I think that the Commissionermight properly have allowed the defence to be raised upon sufficientlyproviding that the plaintiff should not be prejudiced by conditionswith regard to costs. It is clear that the reason for desiring to setup this defence was the discovery of some evidence since the answerwas filed, and also that the defendants exercised some laxity in^notapplying to the Court earlier to amend their defence so as to raisethe new point they desired to take, but.they could by an order asto costs have been sufficiently penalized for that neglect, and theplaintiff could have been put in a position which would have insuredno injustice being caused to him by the amendment being made.The Commissioner, although he refused to allow the defence to begone into, and although there was no issue on the subject, appearsto have looked at the document which had been found by thedefendants, and to have come to the conclusion that it would not,on account of its wording, have enabled the defendants to substan-tiate the defence which they desired to raised, but no issue havingbeen framed, no proper argument could have been addressed to himon the subject, nor is the Court of Appeal in a position to knowwhether his opinion as to the weight that should be given to thedocument is correct or not, because the document, in consequenceof what has happened, is not before the Appeal Court. I thinlrthat the case must be sent back for the purpose of – allowing the
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defendants to raise the issue desired, and, if necessary, to amendtheir answer, but I think that it should be upon terms, as it was thedelay of the defendants in applying for an amendment that hascaused the present difficulty. I would, therefore, direct that uponthe defendants paying or giving security for the costs incurred in theCourt below within twenty-one days, the decree should be set asidepro formS,, and the case re-listed by the Commissioner for the trialof the further issue. The costs of appeal to abide the final result ofthe action.
CASSIM LEBBE v. NATCHIYA et al