036-NLR-NLR-V-63-EKANAYAKE-Appellant-and-EKANAYAKE-Respondent.pdf
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BASNAYAKE, C.J.—Ekanayake v. Ekanayake
I960Present: Basnayake, G.J., and Sansoni, J.EKANAYAKE, Appellant, and EKANAYAKE, RespondentS. G. 154—D. C. Kandy, 4999}L
Amendment of pleadings—Scope—Action for definition of boundaries—Conversionthereof to action for declaration of title to land—Illegality—Civil Procedure Code,ss. 46 (2), 93.
The use of the machinery of amendment of pleadings will not be permittedfor the conversion of an action of one character to that of another. Accord*ingly, a plaint filed in an action for definition of boundaries cannot be amendedso as to convert the action to one of declaration of title to land.
Appeal from an order of the District Court, Kandy.
N. E. Weerasooria, Q.C. with T. B. Dissanayake, for Defendant-Appellant.
Vernon Jcmklaas, for Plaintiff-Respondent.
August 5, 1960. Basnayake, C.J.—
The only question that arises for decision on this appeal is whether theamendments sought to be made to the plaint, as indicated in the docu-ment called “ the amended plaint ”, filed on 23rd September 1959 shouldbe allowed. In his plaint dated 4th January 1957 the plaintiff allegedthat the Western boundary between the plaintiff’s and the defendant’sland had disappeared and he prayed that that boundary be defined anddemarcated. He also prayed the ejectment of the defendant fromthat portion of the land on which the defendant had encroached, and fordamages:In the “ amended plaint ” the plaintiff asked for a declara-
tion of title to the land described in the schedule to the plaint which isin extent about 13 acres and that the defendant be ejected from thatportion marked Lot 1 in Plan No. 4152 dated 19th May 1957 made bySurveyor L. A. De C. Wijetunga.
The action filed in January 1957 was an action for definitionof a boundary. The amendments which the plaintiff sought to makewould if allowed convert that action to one of declaration of title to land.It has been said over and over again that the use of the machinery ofamendment of pleadings was not to be permitted for the conversion of anaction of one character to that of another.
Learned counsel for the appellant cited the following passage from thecase of Wijewardene v. Lenorax :—
“ An examination of the provisions of Chapter VH of the Civil
Procedure Code discloses that the power conferred by section 93 is
subject to one limitation. Section 46. (2) provides that before a plaint
1 {1958) 60 N~L.R. 457 at 463.
Claude Silva v. Joseph
189
is allowed to be died, the Court may refuse to entertain it for any ofthe reasons specified therein and return it for amendment providedthat no amendment shall be allowed which would have the effect of convert-ing an action of one character into an action of another or inconsistentcharacter. If before a plaint is allowed to be filed an amendmentwhich would have the effect of converting an action of one characterinto an action of another or inconsistent character is not permitted,the power conferred on the Court by section 93 for amending the plaintafter it is filed cannot be greater.”
We are in agreement with that view.
Before we part with this judgment we wish to point out that theprocedure for amendment of pleadings is prescribed in section 93 of theCivil Procedure Code and should be followed. In the instant case ithas not been observed. After two years and eight months a freshplaint has been lodged, under the guise of amending the plaint originallyfiled, with no indication whatsoever thereon as to what portions of theplaint it is sought to amend. The course adopted in this case is notauthorised by the Code. The whole purpose of the Code would bedefeated if parties were allowed to ignore its provisions and adopttheir own procedure.
The order of the learned District Judge allowing the amended plaintcannot therefore stand. We accordingly set aside that order and directthat the record be sent back to the lower Court for trial in due course.
The appellant is entitled to the costs of the appeal.
Sansoni, J.—I agree.
Order set aside.