008-SLLR-SLLR-2002-V-2-GUNASEKERA-v.-PUNCHIMENIKE-AND-OTHERS.pdf
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Gunasekera v. Punchimenike and Others
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GUNASEKERA
v.PUNCHIMENIKE AND OTHERS
COURT OF APPEALWIGNESWARAN, J. ANDTILAKAWARDANE, J.
CA NO. 113/89 (F)
DC RATNAPURA NO. 4593/LAUGUST 25, 1999OCTOBER 25, 1999SEPTEMBER 20, 2000
Civil Procedure Code s. 41, s. 46 (2), s. 86, s. 93 – When should Court actunder s. 46 (2)? – Imperative nature of s. 41 – Amendment of plaint – No noticeof amendment given – If plaint ineffective is the Court obliged to dismissthe Action?
Plaint was filed seeking a declaration of title to an undivided share of a land.It was pleaded that the defendant-appellant had encroached upon a portion -the encroached portion was not described with reference to physical metes andbounds or by reference to any map or sketch. The matter was fixed for ex partetrial; after ex parte trial application was made to issue a commission to surveythe land and identify same. The ex parte trial did not end up in a judgment. Afterthe return of the Commissioner, the plaint was amended, a fresh ex parte trialwas thereafter held. After the decree was served, the defendant-appellant soughtto purge default, which was refused.
On appeal –
Held:
The Court was obliged'initially to have rejected the original plaint since itdid not describe the portion encroached upon – s. 46 (2) (a) read togetherwith s. 41, CPC.
When a plan was prepared after ex parte evidence had been partially ledand recorded and an amended plaint filed, Court should have issued noticeas per s. 93. CPC.
Per Wigneswaran, J.
"A Court should not allow amendment of pleadings after an ex parte trialhas been ordered. The scheme of the Code had been where the defendant
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is absent on the day fixed for his appearance and answer, trial ex parte shouldbe held either immediately or as the next step."
If an ex parte is to be held against a party on a plaint which is innocuousand harmless, the party may keep away knowing fully well that nothingserious was going to take place.
APPEAL from the judgment of the District Court of Ratnapura.
Cases referred to :
De Silva v. De Silva – T7 NLR 554 at 557.
Brampy v. Pieris — 3 NLR 34.
The Board of Directors of Ceylon Savings Bank v. ft. Nagodavithane -71 NLR 90 at 92.
N. B. D. S. Wijesekera for 5th defendant-appellant.
Hemasiri Withanachchi with S. N. Vijith Singh for substituted plaintiff-respondents.
Cur. adv. vult.
November 03, 2000WIGNESWARAN, J.
Plaint in this case was filed on 09. 02. 1981 seeking declaration oftitle to an undivided 7/8th share of a land depicted in a plan markedA dated 08. 03. 1897 said to contain 24 perches and described inthe schedule thereto, for ejectment of the defendants, for damagesand costs. The plaint averred that the defendants had unlawfullyentered the land described in the schedule to the plaint in May, 1980,and encroached upon a portion. The encroached portion was notdescribed in the plaint with reference to physical metes and boundsor by reference to any sketch, map or plan. No application was madein the plaint to issue a commission to have the land surveyed andthe portion alleged to have been encroached upon, to be depictedtherein.
It is useful at this stage to consider the provisions of section 41of the Civil Procedure Code which reads as follows:
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Gunasekera v. Punchimenike and Others (Wigneswaran, J.)
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"41. When the claim made in the action is for some specificportion of land, or for some share or interest in a specific portionof land, then the portion of land must be described in the plaintso far as possible by reference to physical metes and bounds, orby reference to a sufficient sketch, map, or plan to be appendedto the plaint, and not by name only."20
Section 46 (2) of the Civil Procedure Code states that a Courtmay refuse to entertain a plaint when first filed and return same foramendment then and there if it found that the plaint did not statecorrectly the several particulars required by the earlier sections (inchapter VII) to be specified therein, which includes the provisions ofsection 41 above-mentioned.
Properly speaking, the Court should have in this instance actedin terms of section 46 (2) of the Civil Procedure Code and returnedthe plaint for amendment. It did not summons was issued andproxy was filed on behalf of 1st, 2nd, 4th and 5th defendants 30on 02. 11. 1981 and ex parte was ordered against the 2nd defendant.Though dates were given, answer was not filed.
In fact, the defendants could very well have kept quiet in this casewith the type of plaint filed because writ could not have been executedin terms of a decree entered on the basis of the plaint, since thearea allegedly encroached upon had not been identified and the planmentioned in the schedule to the plaint was prepared almost 90 yearsearlier. In addition it is to be noted that the plaintiff was a co-ownerand the other co-owner had not been made a party to the case. Thearea occupied by the plaintiff in lieu of her undivided 7/8th share had 40not been described. What portion was occupied by the 1/8th shareowner, if occupied at all, was not described.
When answer was not filed on 22. 11. 1982 the case was fixedfor ex parte trial on 26. 01. 1983 against all the defendants. Attorney-at-law for the plaintiff then moved to amend the plaint. In fact, an
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amended plaint was filed on 29. 08. 1983 which was no different fromthe plaint filed on 09. 02. 1981. The ex parte trial also took placeon 29. 08. 1983. At the end of the ex parte trial an application wasmade to issue a commission to a Court Surveyor to survey the landmentioned in the schedule to the plaint to properly identify same, since 50the plan mentioned in the plaint and marked P11, was very old. Thisapplication was allowed by the Acting District Judge. The ex partetrial on that day did not end up in a judgment and decree. If judgmentand decree were entered as per plaint and documents tendered toCourt on that day, a writ based on such decree could not have beenproperly executed since the land could not have been identified onthe basis of the boundaries mentioned in the schedule to the plaint.The only recognisable boundary, the southern boundary, had changed.
Thereafter, commission was issued, and Plan No. 432 dated11. 11. 1984 was prepared by Court Commissioner M. Samarasekera, 6oLicensed Surveyor. The land surveyed was in two lots with a V CRoad running in between. A superimposition of a photostat copy ofPlan A prepared in 1897 was also done after the new survey, withthe only available fixation data being a roadway to the south of theland described in the original plaint, which according to the Surveyorhad been "abandoned" at the time of survey. In other words the landwhich the plaintiff sought to obtain declaration of title and ejectmentdid not exist in reality as described in the plaint. It must also be notedthat for superimposition purposes photostat copies are to be avoidedsince they lack accuracy.70
On 12. 09. 1985 application was made to amend the plaint againand the application was granted. On 29. 11. 1985 amended plaintwas filed. Declaration and ejectment were claimed in respect of theland depicted in the new plan. Inquiry with regard to the amendedplaint filed on 29. 11. 1985 was held before the then District Judgeon 18. 11. 1986. It appears that on 18. 11. 1986 the question aroseas to whether notice under section 93 of the Civil Procedure Codewith regard to amendment of the plaint should be sent to the defendants.
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The then District Judge had determined on 11. 12. 1986 that sincethe ex parte trial had already started and the plan was prepared only soduring the course of the ex parte trial and the defendants were notbefore Court as at that date, notice was not necessary. Thereafter,ex parte trial was not continued as from where it was left off 'on29. 08. 1983. The defendants' names were called out (without issuingnotice on them) and since they were not present, a fresh ex partetrial was ordered and held on 03. 03. 1987 and judgment enteredon that day itself. A copy of the decree was served on the 5thdefendant-appellant. He filed papers to purge his default on thegrounds that –
there was no personal service of summons, and that90
no notice of amendment of plaint was given to him.
After inquiry the then District Judge made order on 21. 04. 1989dismissing the application and refusing to set aside the ex partedecree.
This is an appeal against the said order dated 21. 04. 1989.
The learned Counsel for the 5th defendant-appellant hassubmitted as follows:
The amended plaint filed without notice to the defendants wasa clear violation of section 93 of the Civil Procedure Code.
The plaint could not have been amended after ex parte trial was 100fixed. De Silva v De Silvaf^
Lot 2 on Plan No. 432 is to the south of the road, while thesouthern boundary to the land mentioned in the original plaintwas road. Thus, a different portion of land has been brought inby amending the plaint.
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The learned Counsel for the plaintiff-respondent argued that whatwas before Court for determination was whether there was sufficientmaterial placed before the District Court to purge the 5th defendant'sdefault. The latter cannot challenge the validity of the ex parte judgmentor the merits of the case. In any event the Attorney-at-law for the 1105th defendant was present in Court on 26. 01. 1983 when applicationwas made to file amended plaint as well as on 29. 08. 1983 whenapplication for a commission to survey the land in dispute was made.
So too the 5th defendant-appellant was present at the time of surveyby the Court Commissioner on 03. 08. 1984. The amended plaint onlyidentified the disputed land better. The amended plaint had not changedthe scope nor nature of the action. The extent of land claimed is inany event less than 24 perches (viz. 17.5 perches). He referred toBrampy v. Pierist21 to support his view that a plaintiff was entitled tosupplement his evidence in cases of this nature. He further argued 120that the phrase “after reasonable notice to all the parties" in section93 necessarily meant parties before Court and not parties who havekept away.
All these submissions would presently be examined.
Basically, it must be noted that if judgment and decree were enteredas per the plaint dated 09. 02. 1981 or amended plaint dated29. 08. 1983 and the other documents filed on 29. 08. 1983, a writissued on such a decree would have been impossible to execute.The land which was the subject-matter of this action would not havebeen identified as per the boundaries given on the writ (based on 130the schedule to the plaint). The defendants, therefore, would not havebeen affected or prejudiced by a decree being entered as per theoriginal plaint or the amended plaint dated 29. 08. 1983. In fact, theCourt was obliged initially to have rejected the original plaint sinceit did not describe the portion encroached upon. But, when a planwas prepared after ex parte evidence had been partially led andrecorded and an amended plaint was thereafter filed, the Court shouldhave issued notice as per section 93 of the Civil Procedure Code.
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If an ex parte is to be held against a party on a plaint which is
innocuous and harmless, that party may keep away knowing full wellthat nothing serious was going to take place. It is akin to an accusedperson not leading any evidence on his behalf and keeping mum inCourt when he is certain that the prosecution cannot prove a primafacie case against him. But, after obtaining an order for ex parte trialif a plaintiff would take steps to include into the original ineffectiveplaint matters which may adversely affect and prejudice the defendants,the Court would be duty bound to give notice of any such amendment.In fact, a Court should not allow amendment of pleadings after anex parte trial has been ordered. According to section 84 of the CivilProcedure Code on the default of the defendant "the Court shallproceed to hear the case ex parte forthwith or on such other dayas the Court may fix". The scheme of the Civil Procedure Code hadbeen "where the defendant is absent on the day fixed for his appearanceand answer, trial ex parte" should “be held either immediately or asthe next step" (vide Vythialingam, J. in De Silva v De Silva {supra)at 557). Siva Supramaniam, J. said in The Board of Directors of CeylonSavings Bank v R. Nagodavitand3) at 92: "The words 'shall proceedto hear the case ex partd therefore mean that the next step the Courtshall take is to hear the case ex parte. The hearing need notnecessarily be on the same day". When this judgment was given, theword “forthwith" was not included in the said section.
Vythialingam, J. went on to say in De Silva v. De Silva {supra)at page 559 "… that it is an imperative provision of law that wherethe defendant is in default, the Court should proceed to trial ex parteas the next step and enter decree nisi (under the earlier provisionsof the section) or dismiss the plaintiff's action if he fails to prove hiscase". That meant, if the plaint was ineffective, the Court was obligedto dismiss the plaintiffs action, and not salvage it behind the backof the defendants.
All these observations point to the fact that the plaint cannot beallowed to be amended at this stage. The plaintiff cannot be allowed
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to point out the defects in his own evidence and pleadings and allowedto take steps to supplement his evidence without the knowledge ofthe defendant. To do so or to allow the plaintiff to do so, would openthe flood gates to plaintiffs filing plaints of one sort and obtaining anex parte decree of another sort without notice to the defendants. Anyattempt to change or amend the pleadings must necessarily be precededby notice to all parties to the action. At least those parties who wouldbe affected by the decree that shall be passed on such amendedpleadings, must necessarily be given notice whether they are before 180Court or "deliberately and contumaciously kept away from the judicialproceedings and who had shown scant respect for the due processof law", (to quote the learned Counsel for the plaintiff-respondent).The latter observation of the Counsel was most unfortunate, becauseit appears that the registered Attorney-at-law for the 5th defendant-appellant Mr. F. R. Weerasekera of the Ratnapura Bar who had filedproxy for the defendants and taken dates to file answer, was ill fora long period of time and is said to have died somewhere in 1988.(vide paragraph 16 of the petition of appeal).
As stated earlier the plaint in this instance should have been 190refused to be entertained in the first instance in terms of section 46(2) (a) read together with section 41 of the Civil Procedure Code.Since that was not done, the Court should have acted under section93 by giving reasonable notice to all the defendants when the plaintwas to be amended. After all an amended plaint would be a freshplaint on which the case would be continued, abandoning the earlierplaint. The defendants were, therefore, entitled to notice. May be theywould not have been entitled to costs as per section 93. Since suchnotice was not given, at least at the stage of inquiry into the applicationto purge default, the denial of notice to the defendants, should have 200been taken into consideration and order made accordingly. Even atthat stage this was not done. The learned District Judge seems tohave been under the impression that the Attorney-at-Law for thedefendants was present in Court when an application to amend theplaint was made on 26. 01. 1983. This is incorrect. Journal entry 14
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of 26.01.1983 no doubt refers to appearances of registered Attorneys-at-Law for the plaintiff and the defendants. But, such appearancesare inserted in the journal entries by clerks of Court on the basis -of the proxies filed prior to the case being taken up in open Court.
In this instance the journal entry does not state “S3” to come to the 210conclusion that when the case was called, both Attorneys-at-Law werepresent in Court. Therefore, it was wrong to have come to theconclusion that the Attorney-at-Law for the defendants had notice ofan application to amend plaint. Presumably, he was not present inCourt on 26. 01. 1983. In any event he had no status on 26. 01.1983 when the case had been already fixed for ex parte trial on22. 11. 1982.
Brampy v. Pieris (supra) has no bearing to the present case. Therewas no amendment of pleadings contemplated in the case referred
Therefore, we find that the allowing of amendment of the plaintafter the case was fixed for ex parte trial without notices to all partieswho would have been affected by such amendment was tainted withillegality. A Court cannot allow amendment of pleadings without noticeto all parties who shall be affected by such amendment.
We, therefore, set aside the orders dated 22. 11. 1982, 11. 12.1986, 03. 03. 1987 (and decree dated 03. 03. 1987) and order dated21. 04. 1989 and quash all proceedings thereafter undertaken anddirect the District Judge, Ratnapura, to give notice to all defendants(including the 3rd defendant) with regard to the amended plaint filed, 230thereafter receive any objections that may be tendered, inquire intosame and proceed therefrom according to law. Parties shall beartheir own costs.
TILAKAWARDANE, J. – I agree.
Appeal allowed.