054-NLR-NLR-V-54-DON-ALWIS-et-al-Appellants-and-VILLAGE-COMMETTEE-OF-HIRIPITIYA-Respondent.pdf
Don Alwis v. Village Committee of Hiripitiya
225
1952Present: Nagaiingam A.C.J. and Gunasekara J.DON ALWIS et al., Appellants, and VILLAGE COMMITTEEOF HIRIPITIYA, Respondent8. C. 174-175—D. C. Inty. Kurunegala, 6,614
Amendment of plaint—Addition of party defendant—Circumstances when it will not beallowed—Civil Procedure Code, ss. 18 and 93.
Where a plaintiff has instituted action against a wrong party as the defendantthe plaint cannot he subsequently amended so as to have the proper personadded as a defendant. In sueh a case, the proper course is for the plaintiff todrop the action which has been wrongly instituted and commence a new actionagainst the proper person who should have been made the defendant.
226
GTJNA.SEKARA J.—Don Alwis v. Village Committee of Biripitiya
_/^_PPEAJLS against an order of the District Court, Kurunegala.
. G. Wilcramanayake, Q.C., with T. W. Rajaralnam, for the 1stdefendant, appellant in 174 and 2nd respondent in 175.
H. W. Jayewardene, for the 2nd defendant, appellant in 175 and 2ndrespondent in 174.
N. E. Weerasooria, Q.C., with J. A. L. Cooray and W. D. Gunasek&re,for the plaintiff respondent in both appeals.
Cur. adv. vult.
May 15, 1952. Gukasbkaea J.—-
These are appeals by the two defendants against an order made by thelearned Additional District Judge on the 9th July, 1951, allowing anapplication made on behalf of the plaintiff for amendment of the plaintand for the addition of the second defendant as a party.
The plaintiff, who is the Village Committee of Hiripitiya, instituted thisaction on the 12th July, 1950, alleging that the first defendant Don Alwiswas holding a fair within the village area of Hiripitiya in violation ofthe Committee’s by-laws and of a right that it claimed to regulate the hold-ing of fairs, and praying for an injunction restraining him from holding afair within that area without a licence from the Committee’s Chairman' andfor damages in a sum of Its. 5,000. Upon an ex parte application madeon the plaintiff’s behalf an interim injunction was granted to accompanythe summons and it was served on the first defendant on the 15th July.In an affidavit dated the 13th July that was filed in support of this appli-cation the Chairman declared that this defendant was “ unlawfully andforcibly …. holding and running a fair on his land called Nika-dalupothehena within the Village Committee Area of Hiripitiya everySunday ”. He also stated—•
“ I personally know and have seen the defendant running this fair
and have visited the fair to satisfy myself personally that it is being
held. ”
On the 19th July the plaintiff Committee’s proctors filed another affidavitby the Chairman alleging a disobedience of the injunction and moved thatthe injunction be enforced by the punishment of the first defendant as fora contempt of court. He stated in that affidavit that notwithstandingthe injunction the defendant “ did openly hold and rim the fair ” and thathe “ made a complaint to the Wellawa Police on Sunday the 16th Julyand.four Police Officers were present at the spot and witnessed this actcf the defendant ”. After an inquiry into the alleged contempt the firstdefendant was acquitted on the 28th August. On the 30th August hefiled bis answer to the plaint, denying that he was holding a fair and(Jenying the plaintiff’s claim. He claimed in reconvention a sum ofIts. 10,000 as damages suffered by him in consequence of wrongful actsalleged to have been done by the plaintiff in connection with the issue of
GUN'ASEKA'RA J.—Don Alivia v. Village Committee of Hiripitiya
227
the interim inj unction and the subsequent proceedings on the charge ofcontempt. This claim was denied by the plaintiff in a replication filedon the 19th September. The first defendant had in the meantime appliedto the District Court on the 1st August for a dissolution of the interiminjunction, and that application was granted on the 25th September. Onthe 10th October an application was made on behalf of the plaintiff foramendment of the plaint. It is the order made upon this applicationthat is the subject of these appeals.
It had been alleged in the plaint that the defendant Don Alwis “ appliedfor a permit to hold a fair and his application was refused ”, and that “ inspite of the said refusal the defendant on the 24th October, 1948, establishedand continues to hold a fair within the said area without a licence issuedin that behalf by the Chairman in violation of the said by-laws and incontravention of the plaintiff’s right to regulate the holding of fairs in thesaid area in terms of the said by-laws ”. The principal amendmentssought to be made in the plaint were the addition of the name of thepresent second defendant, Don Davith, as a party defendant; the inclusionof averments to the following effect—
(а)that the first defendant stated that the application for a permit was
made by him not on his own behalf but on that of the seconddefendant, and the plaintiff was unaware whether it was madeon behalf of the one or the other,
(б)that the fair was established and was being held by the first or the
second defendant or by both of them, and
(c) that a cause of action had accrued to the plaintiff to sue the defen-dants for an injunction restraining either or both of them fromholding the fair and for damages in Rs. 5,000 as against eitheror both of them ; [and the addition in the prayer of a claimfor relief against the second defendant].
In his petition of the 1st August, 1950, asking that the interim injunctionbe dissolved, the first defendant appellant had denied that “ he appliedfor and was refused for himself a permit to hold a fair ”, and had statedthat since 1942 it was the present second defendant appellant and not hehimself who held “ the said fair ”, and that the second defendant appellanthad held a licence for several years and was refused one in 1948 ;and further that these facts were within the knowledge of the plaintiffinasmuch as they had been alleged and proved in several cases in theRural Court where the plaintiff had unsuccessfully prosecuted him forbreach of the by-laws in question. Replying to the statements in thispetition the plaintiff had alleged in a “ statement of objections ” filed onthe 21st August that “ the position taken up by the defendant petitionerin some of the said cases was that he ran the fan himself and in others that itwas run by his brother, B. D. David Appuhamy ”, but that “ in fact theperson who ran the fair was the defend ant-petitioner ”. The learnedDistrict Judge holds that the first defendant appellant “ has as if it weredisclosed a party and stated that it was the party disclosed by him who isconducting the fair ”, and that “ the plaintiff is entitled to have the partydisclosed in the original defendant’s petition added as a defendant ”.Having reached this finding that the plaintiff is “ entitled ” to have the
228
GUNASEKARA J.—Don AXwis v. Village Committee of Siripitiya
second defendant added as a party, the learned Judge refers to the powergiven to the Court by section 93 of the Civil Procedure Code to amendpleadings at its discretion and holds that the plaintiff’s application is onemade in good faith, and that the amendment asked for would not alterthe nature and scope of the action, and is not one that would embarrass thedefendants or defeat a plea of prescription that might otherwise be opento the second defendant. For these reasons he added the second defendantas a party and allowed the application for amendment of the plaint.
“ The principle by which a Court ought to be guided in deciding to altera pleading is that the alteration will make therealissues clear.” (Per Lawrie J.in J?atwattev. Owen1). The real issue of fact between the plaintiff and thefirst defendant appellant, who was the only defendant in the case before theplaint was amended, was and is the question whether the fair was estab-lished or being held by the latter. This is the real issue between them,whether the plaintiff’s case is that the first defendant acted onhis own be-half or on behalf of the second defendant. The issue is clear enough uponthe pleadings as they stood before the amendment of the plaint andit is not made any clearer by the amendment. Actually the object of theplaintiff’s application for amendment of the plaint appears to be to enablehim to proceed in this action against the second defendant if he has wronglyinstituted it against the first; but in that event “ the proper course is forthe plaintiff to drop the action which has been wrongly instituted andcommence a new action against the proper person who should have beenmade the defendant ” : Kira v. Kira 2. The learned Judge appears to havelost sight of theprinciple by which a Court should be guided in the exerciseof "its discretion under section 93, and the order for the amendment of theplaint must be set aside.
It seems to me that it follows that there is no warrant for the orderadding the second defendant as a party. Section 18 of the Civil ProcedureCode empowers a Court to order “ that the name of any person who oughtto have been joined, whether as plaintiff or defendant, or whose presencebefore the Court may be necessary in order to enable the court effectuallyand completely to adjudicate upon and settle all the questions involvedin the action, be added ”. It is only the amendment of the plaint by theaverment of a cause of action against the second defendant, Don Davith,and a claim to relief against him that would render necessary his presencebefore the Court as a party. His presence as a party is not necessary toenable the Court “ effectually and completely to adjudicate upon andsettle ” all the questions involved in the plaintiff’s action against the firstd ef endant- appellant.
I would allow both appeals and set aside the older made by the learnedAdditional District Judge on the 9th July, 1951, and substitute for it anorder refusing the plaintiff’s application for amendment of the plaint andthe addition, of the second defendant appellant as a party defendant.The plaintiff respondent will pay the costs of the defendants-appellant inboth Courts.
Nagalingam A.C.J.—I agree.
(1896) 2 N. L. M. 141.
Appeals allowed.(1921) 8 G. L. Bee. 73.