034-NLR-NLR-V-76-D.-D.-L.-KALUARACHCHI-Appellant-and-CEYLON-TRANSPORT-BOARD-Respondent.pdf
FERNANDO, P.—Perera v. Wijetunga
173
1972 Present: G. P. A. Silva, S.P.J., and Deheragoda, J.D. L. KALUARACHCHI, Appellant, and CEYLON TRANSPORTBOARD, Respondent
8. C. 210169 (Inly.)—D. C. Colombo, 68219
Prescription—Application to add a party by amending the plaint—Cause of actionnot prescribed at the lime of such application—Order of Court made, however,after caitse of action has become prescribed—'Whether amendment of the plaintis permissible—Scope for joining a defendant after commencement of action—Civil Procedure Code, ss. 11-19, 21, 4B.
1*»—A 00306 (7/73)
174
G. P. A. SILVA, S.P.J.—Ka.luarach.chi v. Ceylon Transport Board
The plaint in the present action would have been an acceptable one if it hadbeen filed against A, B and O jointly, severally or in the atlemative in respectof a claim in delict. The plaint was filed originally on 14th September 1967against A and B only. After answer was filed by A and B on 3rd February 1968the plaintiff moved to amend the plaint and also tendered an amended plaintin which A and B as well as C figured as the defendants. This applicationto add a party and amend the plaint was filed on 12th September 1968, nearlyfour months before the cause of action was prescribed. On 18th October 1968,when the case was called for consideration of the amended plaint, an objectionwas filed by A and B that the amendment defeated a plea of prescription availableto the defendants—presumably to C. After hearing all parties, the trial Judgemade order on 5th September 1969 that, as the cause of action against theproposed added defendant was prescribed on that day, the amendment couldnot be allowed.
Held, that the date which was material for a successful plea of prescriptionwas the date of the tendering of the amended plaint together with the motionto amend and not the date of the order made thereon by the Court. Accordingly,considering especially that the application for the amendment of the plaintwas filed no less than four months before the cause of action was prescribed,the plaint should be allowed to be amended.
_/.PPEAL from a judgment of the District Court, Colombo.
Mark Fernando, for the plaintiff-appellant.
H. W. Jayewardene, Q.C., with B. L. Jayasuriya and Miss IvyMarasinghe, for the respondent.
Gur. adv. vutt.
June 20, 1972. G. P. A. Silva, S.P.J.—
On 14th September, 1967, the plaintiff-appellant brought this actionagainst two defendants, the 1st defendant being the owner of a carbearing No. 4 Sri 4014 and the 2nd being its driver at the material time,for damages suffered by the plaintiff in respect of certain injuries sustainedby him as a result of a collision between the car driven by the 2nddefendant in which the plaintiff was being carried and a Ceylon TransportBoard Bus bearing No. 23 Sri 1215. The plaintiff’s position as disclosedby the original plaint filed on 14th September 1967 was that when hewas travelling in the said car on 6th January, 1967, as a result of thenegligence of the 2nd defendant, the car collided with the said bus resultingin serious injuries to the plaintiff. He assessed the mental and physicalpain suffered by him, together with medical expenses and the loss sufferedby him by reason of his absence from his normal pursuits, at Rs. 100,000and claimed the amount from the two defendants.
The defendants filed answer on the 3rd February, 1968, stating that thecollision was due to the sole and/or contributory negligence of the driverof bus No. 23 Sri 1215 belonging to the Ceylon Transport Board, that thecollision was an inevitable accident, that in any event the policy ofinsurance issued in respect of the said motor car limited the damage toRs. 2,000 and that the plaint did not disclose a cause of action againstthe defendants and prayed for a dismissal of the action.
G. P. A. SILVA, S.P.J.—Kaluarachehi v. Ceylon Transport Board
175
Subsequent to this answer, the plaintiff revoked the proxy of theoriginal proctor and on 12.9.68, after filing a fresh proxy, moved toamend the plaint and also tendered an amended plaint in which thetwo original defendants as well as the Ceylon Transport Board figuredas the defendants. In addition to the averments which the plaintiffhad made in the original plaint in respect of the negligence of the 2nddefendant, he averred in the amended plaint, in the alternative, thatthe said collision was due to the negligence of the driver of the saidomnibus. He therefore pleaded that the said collision was due to thecombined simultaneous and/or concurrent negligence of the driversof the two vehicles, that he was unable id the circumstances to statedue to whose negligence the collision was caused and prayed forjudgment against the defendants jointly and/or severally in the sum ofRs. 100,000.
On 18.10.68 the case was called for consideration of the amendedplaint and certain, objections were filed by the 1st and 2nd defendantsbroadly under three heads :—•
that the amendment defeats a plea of prescription available to
the defendants—presumably the 3rd .defendant,
that plaintiff had sued the wrong party and that there was a
misjoinder of parties,
that the amended plaint alters the nature and scope of the action.
A further point was taken in regard to the procedure adopted by theplaintiff to have a new party added. Before an order was made on theseobjections the learned District Judge issued a notice on the party proposedto be added, the Ceylon Transport Board. Certain objections were filedby the proposed 3rd defendant and after hearing all parties, on 5thSeptember 1969 the learned District Judge held in favour of the plaintiffon all the points except the first, namely that the claim as against theproposed 3rd defendant was prescribed and that the plaint was out oftime. It is against this order that the plaintiff has appealed to thisCourt.
The crucial question that arises for decision therefore is as regardsthe event in this case which is material for a successful plea of prescription.Is it the tendering of the amended plaint together with the motion toamend or the making of the order thereon by the Court ?
In order to decide this question, it is not irrelevant to consider theattitude of the legislature to the joinder of parties having either acommunity of interest as plaintiffs or having a liability, either jointlyor severally, in respect of the cause of action. Clearly, in my view, sections11 to 18 of the Civil Procedure Code favour the joining of several plaintiffsor several defendants in those circumstances and do not favour amultiplicity of actions.. Normally, these provisions seem to contemplatethe joining of such parties as'plaintiffs or defendants at the commence-ment of the litigation. Where, however," there is a failure of the parties
176
G. P. A. SILVA, S.P.J.—Kaluarachchi v. Ceylon Transport Board
themselves to do so at the commencement of the litigation, that is, atthe stage of the pleadings, section 18 gives the power to the Court atany time, either upon or without such application and on such termsas the Court thinks just, to order that any plaintiff be made a defendant,or that any defendant be made a plaintiff, and that the name of anyperson who ought to have been joined, whether as plaintiff or defendant,or whose presence before the Court may be necessary in order to enablethe Court effectually and completely to adjudicate upon and settle thequestions involved in the action be added. This language, while notmaking it obligatory on a party or on the Court to join all the partiesthat may appropriately be joined, certainly indicates a desire on thepart of the legislature that such parties be joined. Furthermore, wherethe party instituting or defending the action fails to make use of thispermitted right, the Court is empowered to do so me.ro motu. The obviouspurpose of this provision seems to be to avoid a multiplicity of actionsin respect of a matter which can conveniently be disposed of in one action.Not only does such a course result in a saving of time and expense tothe litigant and a saving of time and expense to the state but the presenceof all the parties before Court in certain circumstances would enablethe Court to have a better assessment of the facts and result in a morejust decision of the matter in dispute.
It must be noted that the failure to have all the parties before theCourt at the commencement of the action may be due to many reasons.A plaintiff, for instance, may not in the first place know who all thedefendants are ; secondly he may not know in what way some otherparty or parties who should have been made defendants have a liabilityto be sued; thirdly he may not realise the position t>f a party notoriginally joined until the party who has been cited as defendant dis-closes it in the answer and, lastly, he may in the first instance receivewrong legal advice. Whatever the reason for not joining a particulardefendant may be, the provisions referred to above would appear toallow full scope for joining a defendant after the commencement of theaction in the circumstances set out therein, the only limitation beingwhat is contemplated in the proviso to Section 46, namely, that noamendment will be allowed which would have the effect of convertingan action of one character into an action of another and inconsistentcharacter.
In the instant case, the rejection by the learned District Judge of theobjections regarding misjoinder, the alteration of the nature and scopeof the action and the procedure adopted by the plaintiff shows that theproposed amendment was not vitiated by any of those considerationsand we are therefore not called upon to decide those matters. The DistrictJudge however held that on the day he made the order after inquiry thecause of action against the proposed added defendant was prescribedand that was the only reason why the amendment was not allowed.
G- P. A. SILVA, S.P.J.—Kaluarachchi v. Ceylon Transport Board
177
A number of cases were cited to us by counsel for the respondent toshow that no amendment to add a party defendant could take placeexcept after obtaining an order of Court in terms of sections 18 and 19of the Civil Procedure Code. Counsel for the appellant, while concedingthat position, submitted that the learned District Judge was wrong inholding that the cause of action so far as the proposed added defendantwas concerned was prescribed, taking the material date to be the date ofhis inquiry and decision.- His contention was that all that was withinthe power of the plaintiff was to make the application to Court to amendthe plaint and to add the. third defendant which he did well before thecause of action was prescribed and that he should not be penalised becausethe Court did not hear and decide the application before the date onwhich prescription started to run. In my view this submission mustsucceed. The application to add the party together with the amendedplaint was filed on the 12th September 1968, nearly four months beforethe question of prescription could arise. The court first fixed this applica-tion for consideration in October 1968 and allowed him to file objectionswhich were subsequently filed. Even on this day, prescription had notbegun to operate against the plaintiff. On the day of the inquiry hedecided to notice the proposed added defendant and fixed the matterfor hearing On a date after the period of prescription had been completed.Without doubt, if that day is considered for the purpose of prescription,the amendment could not be allowed.
; In interpreting the provisions contained in Sections 18 and 19, itwould I think be quite iniquitous to make a question of prescriptionsuch as the one before us dependent on the vagaries of the inquiry byCourt. If the application to add the party is made and the amendedplaint is filed before the commencement of the period of prescription,in the event of the application itself being allowed, the only fair courseseems to me to date back the consent of the Court to the date of filingof the amended plaint. Else one is confronted with the situation that. the same amended plaint will not be prescribed in a Court in which workis disposed of expeditiously while it will be prescribed in a Court wherethe Judge is compelled to be slow. A rule of law should not be made todepend on a fortuitous circumstance which will vary with each court.It may even be different if the application is made by a party leavingno time at all for the Court to decide the question, for instance, wherea party files such application on the last available date after the Courthas adjourned for the day. But where the application itself is filed inreasonable time, in this case about 4 months before the crucial date,
. and for a reason such as rush, of work, ill health of the Judge, absence ofstaff, insurgent activities in the area, which prevents the Court from sittingor any other extraneous cause, the Court does not deal with the applicationbefore a certain disability starts operating to the applicant’s disadvantage,it would be most unfair to penalise a party and deprive him of a legalremedy available to him. There is nothing in the provisions to suggestthat an applicant in this situation should file his application within aspecified period to enable the Court to decide the question. Nor does
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G. P. A. SILVA, S.P.J.—Kaluarachchi v. Ceylon Transport Board
a single authority cited to us even indirectly point to the materiality ofthe date of decision by Court. For these reasons, when a reasonableconstruction of the section which avoids hardship or harshness is possible,namely, that when the Court allows the application, the amended plaintwith the added party which the Court sanctions becomes a good plaint,I think a Court should necessarily lean to that view. This should be parti-cularly so where the party has done everything within its power to securecompliance and the delay has been occasioned after his application wastaken cognizance of by the Court.
A contrary decision on this point will also lead to a curious result whichcould never have been contemplated by the relevant provisions. Thereis no question in this case that if, in the first instance, the two originaldefendants and the Ceylon Transport Board were made defendants fromwhom a claim was made jointly, severally or in the alternative, the plaintwould have been an acceptable one. The learned District Judge’sfindings in regard to the objections other than the one which related toprescription confirm that he indeed took that view. Sections 18 and 19which encourage the avoidance of a multiplicity of actions empower theCourt to join parties at a stage subsequent to the commencement. Thepresent decision will entirely defeat the object of these provisions. Inthese circumstances, a Court should not permit itself to be baulked orhampered by objections of a technical nature which are lacking in realsubstance but must give a construction to the provision which it canbear so as to enable a party with a just grievance to obtain his legalremedy.
The 1st and 2nd defendants, if their contention was right, should havewelcomed the plaintiff adding the Ceylon Transport Board as the 3rddefendant and its addition would have helped the effectual decision ofthe case. This indeed appears to be the test which a Court shouldapply—vide Chartered Bankv. de Silva,1 67 N.L.R. 135. It is very strange,however, that these two defendants far from welcoming such additionshould have raised objections to the Ceylon Transport Board being joinedon several grounds which did not find favour with the learned DistrictJudge and that one of their grounds of objection should have been thatthe proposed addition would defeat a plea of prescription available to thedefendants. It is also noteworthy that these objections were filed on the18th October 1968, about three months before prescription wouldcommence. I cannot escape the feeling that the 1st and 2nd defendants,who would perhaps have gained from the joinder of the Ceylon TransportBoard, raised this plea,—which was appropriately one for the CeylonTransport Board to raise—in connivance with the Ceylon Transport Board,in order to defeat the claim of the plaintiff. The question arises then asto whether frivolous objections were raised by these defendants in badfaith with the object, inter alia, of having the decision of the Court post-poned for a date after prescription had started to operate against the *
* (1964) 67 N. L. R. 135.
G. P. A. SILVA, S.P.JT.—Kaluardchchi v. Ceylon Transport Board 179
plaintiff. This sort of situation too justifies me in the view I havealready expressed that when a plaintiff has done everything in his powerto add a-party and amend his pleadings on a date before an objection onthe ground of prescription can be raised it would be wholly inequitableand unjust to permit the date of such amendment to depend on the dateof the decision thereon by the Court over which the party seeking toamend has no control.
It was submitted by counsel for the respondent that section 21 of theCivil Procedure Code contemplated adding the party first and serving ofthe amended plaint thereafter. Reliance was also placed on Section 10which provided that proceedings as against an added defendant shall bedeemed to commence on the service of the summons. I do not thinkthat both these provisions militate against the argument that so far as aplaintiff who wishes to add a defendant is,concerned he is within timeso long as he has filed the necessary, papers and n_.ide the necessaryapplication. These provisions are intended, in my view, to ensurethat a third party who is subsequently added should also have noticeof proceedings having been commenced agamst bim, just as a defendantin the first instance has to receive notice of the institution of an actionand becomes bound to fulfil his obligations as a defendant only afterthe service of summons.
There are many instances in law where a party is obliged to take acertain step subject to approval by a Court or by any person who isvested with the authority to approve or reject it as irregular. In allthese instances a power to reject necessarily implies a power to approve;for, the step so taken will be considered valid only if it is not rejectedoh some ground of non-compliance with an. essential requirement. Insuch cases, once the step is approved, such a step will be deemed to havebeen so taken on the date on which it is taken and not on the day it isapproved.• *
For the above reasons, I think that the learned District Judge was inerror in holding that the addition was prejudicial, to the party proposedto be added, in a plea of prescription. I accordingly set aside this ordermade by the learned District Judge on the 5th September, 1969, and
make order allowing the application to add the respondent as a party.
• – * * ^
The appellant is entitled to the costs of this appeal as well- as to halfthe costs incurred in the lower Court in respect of the application to addthe respondent as a defendant.
Dehekagoda, J.—I'agree.
Order set aside.